Order Code RS21428
Updated January 14, 2005
CRS Report for Congress
Received through the CRS Web
The History and Effect of Abortion
Conscience Clause Laws
Jody Feder
Legislative Attorney
American Law Division
Summary
Conscience clause laws allow medical providers to refuse to provide services to
which they have religious or moral objections. In some cases, these laws are designed
to excuse such providers from performing abortions. During the 108th Congress, S. 1397,
an abortion conscience clause bill, was introduced in the Senate, and a companion bill,
H.R. 3664, was introduced in the House. Although neither of these bills were enacted,
Congress did pass appropriations legislation that contained a conscience clause
provision. This report describes the history of the conscience clause as it relates to
abortion law and provides a legal analysis of the effects of such laws, including the
provision contained in P.L. 108-447, the Consolidated Appropriations Act, 2005.
Legislators are likely to consider similar legislation during the 109th Congress.
Historical Background
Conscience clause laws allow medical providers to refuse to provide services to
which they have religious or moral objections. These laws are generally designed to
reconcile “the conflict between religious health care providers who provide care in
accordance with their religious beliefs and the patients who want access to medical care
that these religious providers find objectionable.”1 Although conscience clause laws have
grown to encompass protections for entities that object to a wide array of medical services
and procedures, such as providing contraception or terminating life-support, the original
focus of conscience clause laws was on permitting health care providers to refuse to
participate in abortion or sterilization on religious or moral grounds. This section details
both the history and current state of conscience clause laws regarding abortion.
1 Katherine A. White, Crisis of Conscience: Reconciling Religious Health Care Providers’
Beliefs and Patients’ Rights, 51 Stan. L. Rev. 1703, 1703 (1999).
Congressional Research Service ˜ The Library of Congress

---

CRS-2
Passed in 1973, the Church Amendment was the first conscience clause enacted into
law. Responding to the Supreme Court’s decision to legalize abortion in Roe v. Wade,2
Congress quickly passed the amendment,3 which states that public officials may not
require individuals or entities who receive certain public funds to perform abortion or
sterilization procedures or to make facilities or personnel available for the performance
of such procedures if such performance “would be contrary to [the individual or entity’s]
religious beliefs or moral convictions.”4 This law, which remains in force today, applies
to any individual or entity that receives federal financial assistance under the Public
Health Service Act, the Community Mental Health Centers Act, or the Developmental
Disabilities Services and Facilities Construction Act. The law further prohibits entities
that receive federal funds under these statutes or under a biomedical or behavioral
research program administered by the Department of Health and Human Services from
engaging in employment discrimination against doctors or other medical personnel who
either perform abortion or sterilization procedures or who refuse to perform such
procedures on moral or religious grounds.5
By 1978 – five years after the decision in Roe v. Wade – virtually all of the states had
enacted conscience clause legislation in one form or another.6 From 1978 to 1996, there
was a lull in conscience clause activity, with one exception. When Congress enacted the
Civil Rights Restoration Act in 1988,7 it adopted the Danforth amendment, which
mandated neutrality with respect to abortion. Specifically, the amendment clarified that
Title IX of the Education Amendments of 1972,8 which prohibits sex discrimination in
federally funded education programs, may not be construed to prohibit or require any
individual or entity to provide or pay for abortion-related services, nor may it be construed
to permit the imposition of a penalty on any person who has sought or received abortion-
related services.9
Nearly a decade after the Danforth amendment, Congress enacted additional
conscience clause legislation in the Omnibus Consolidated Rescissions and
Appropriations Act of 1996.10 Under this law, which amended the Public Health Service
Act, the federal government and state and local governments are prohibited from
discriminating against health care entities that refuse to undergo abortion training, to
2 410 U.S. 113 (1973).
3 The amendment was enacted as part of the Health Programs Extension Act of 1973, Pub. L. No.
93-45.
4 42 U.S.C. § 300a-7(b).
5 Id. at § 300a-7(c).
6 Rachel Benson Gold, Conscience Makes a Comeback In the Age of Managed Care, The
Guttmacher Report on Public Policy (Feb. 1998).
7 Pub. L. No. 100-259.
8 20 U.S.C. § 1681 et seq.
9 Id. at § 1688.
10 Pub. L. No. 104-134.

---

CRS-3
provide such training, to perform abortions, or to provide referrals for such training or
abortions.11
One year later, Congress again revisited the abortion conscience clause issue when
it enacted the Balanced Budget Act of 1997.12 Concerned that managed care plans might
seek to prevent doctors from informing patients about medical services not covered by
their health plan, Congress amended the federal Medicaid and Medicare programs to
prohibit managed care plans from restricting the ability of health care professionals to
discuss the full range of treatment options with their patients.13 The legislation, however,
simultaneously exempted managed care providers under these programs from the
requirement to provide, reimburse for, or provide coverage of a counseling or referral
service if the managed care plan objects to the service on moral or religious grounds.
Thus, a Medicaid or Medicare managed care plan cannot prevent providers from
providing abortion counseling or referral services, but it can refuse to pay providers for
providing such information, although the plan must notify new and existing enrollees of
such a policy if it does indeed have one.14
The effect of the 1997 legislation was to extend the coverage of conscience clause
laws beyond the individuals who provide medical care to the companies that pay for such
care under the Medicaid and Medicare programs. Furthermore, the new conscience clause
law is broader because it allows Medicaid and Medicare-funded health plans to refuse to
provide counseling and referral for abortion-related services, whereas earlier conscience
clause laws permitted providers to opt out only of the actual provision of such services.15
As a result, the 1997 provision may potentially have a broader impact than the 1973
Church amendment, both in terms of its effect on the entities that may refuse to provide
abortion services and on the individuals who wish to access such services. In a similar
vein, recent abortion bills introduced in Congress have proposed changes that would
expand the scope of current conscience clause laws. This legislation is discussed in the
next section.
Recent Legislation and its Effect on Existing Law
Two bills that would expand the scope of existing conscience clause legislation were
introduced during the 108th Congress. Although neither of these bills — S. 1397 and H.R.
3664 — were enacted, Congress did pass appropriations legislation that contains a
conscience clause provision.
11 42 U.S.C. §238n(a)(1).
12 Pub. L. No. 105-33. The Medicare conscience clause provision is codified as amended at 42
U.S.C. § 1395w-22(j)(3)(B), and the identical Medicaid conscience clause provision is codified
as amended at 42 U.S.C. § 1396u-2(b)(3)(B).
13 42 U.S.C. § 1395w-22(j)(3)(A); 42 U.S.C. 1396u-2(b)(3)(A).
14 42 U.S.C. § 1395w-22(j)(3)(B); 42 U.S.C. 1396u-2(b)(3)(B).
15 Despite the new exemptions regarding the provision of counseling and referral or abortion-
related services, programs funded by Medicaid are nevertheless required to provide family
planning services to their clients, either directly or through referral and payment to other
providers. 42 U.S.C. § 1396d(a)(4)(C).

---

CRS-4
As noted above, the 1996 conscience clause law prohibits the federal government
and state and local governments from discriminating against health care entities that
refuse (1) to undergo abortion training, (2) to provide such training, (3) to perform
abortions, or (4) to provide referrals for such training or abortions.16 This
nondiscrimination law protects doctors, medical students, and health training programs
from being denied federal financial assistance or a license or certification that they would
otherwise receive but for their refusal to provide abortion services or training.17 Although
often referred to as a conscience clause law, this provision is somewhat different from
traditional conscience clauses because medical providers can refuse to provide training
or services for any reason, not just on moral or religious grounds.
Under the law enacted in 1996, the definition of “health care entity” includes
individual physicians, postgraduate physician training programs, and participants in health
professions training programs.18 Recent legislation, however, has proposed to expand this
definition, thereby resulting in a broader range of entities that could legally refuse to
provide abortion training or services without fear of losing federal funding or
accreditation. Supporters of such legislation argue that such expansion is necessary
because some state legislatures and courts have weakened existing conscience clause
protections, which proponents view as critical to shielding religious hospitals and other
medical providers that oppose abortion. Opponents, on the other hand, argue that such
legislation would impose serious restrictions on women’s access to abortion. Critics also
note that such legislation would allow providers to drop abortion coverage not only for
moral or religious reasons but also for financial reasons, such as the desire to save money
by reducing coverage.19
During the 108th Congress, legislators introduced two bills that would have expanded
the abortion nondiscrimination exemption in such a fashion. Known as the Abortion Non-
Discrimination Act (ANDA), H.R. 3664 and its companion measure, S. 1397, would have
expanded the definition of “health care entity” to include other health professionals,
hospitals, provider sponsored organizations, health maintenance organizations (HMOs),
health insurance plans, or any other kind of health care facility, organization, or plan.
Neither of these two bills were enacted.
After H.R. 3664 and S. 1397 stalled in the House and Senate, however, a similar
conscience clause provision was inserted into the appropriations bill for the Departments
of Labor, Health and Human Services (HHS), and Education, which was eventually
enacted as part of the Consolidated Appropriations Act, 2005.20 This legislation, which
is very similar to ANDA, provides: “None of the funds made available in this Act may
be made available to a Federal agency or program, or to a State or local government, if
such agency, program, or government subjects any institutional or individual health care
entity to discrimination on the basis that the health care entity does not provide, pay for,
16 42 U.S.C. § 238n(a)(1).
17 Id. at § 238n(b)(1).
18 Id. at § 238n(c)(2).
19 Reuters, House Votes Hospitals May Avoid Abortions, N.Y. Times, Sept. 25, 2002, at A26.
20 P.L. 108-447, Division F, § 508(d).

---

CRS-5
provide coverage of, or refer for abortions.”21 Under the legislation, the definition of
“health care entity” includes “an individual physician or other health care professional,
a hospital, a provider-sponsored organization, a health maintenance organization, a health
insurance plan, or any other kind of health care facility, organization, or plan.”22
Like previous law, the effect of this legislation is to prevent the federal government
and state and local governments from enacting policies that require health care entities to
provide or pay for certain abortion-related services. The appropriations legislation,
however, greatly increases both the number and type of health care providers and
professionals who may refuse to provide abortion training or services without reprisals.
For example, previous law protected only individual doctors or medical training programs
that did not provide abortions or abortion training, and appeared to apply primarily in the
medical education setting or to doctors in their individual practices. The new legislation,
on the other hand, allows large health insurance companies and HMOs to refuse to
provide coverage or pay for abortions. Since an HMO’s refusal to provide abortion-related
services would affect a much larger number of patients than would an individual doctor’s
refusal to provide such services, the new legislation may result in a denial of abortion-
related services to a significantly expanded number of individuals.
Although the new appropriations legislation is similar to the proposed ANDA, it
differs in two important respects. First, ANDA would have denied all federal funds to
entities that engaged in abortion-related discrimination, but the new legislation denies
only those funds available under the Labor/HHS appropriations bill. Second, the passage
of ANDA would have resulted in permanent legislation, while the new appropriations
legislation will remain in effect for one year only, unless Congress enacts a similar
provision in future appropriations bills. Thus, although the new conscience clause
legislation is a significant expansion of previous law, it provides for smaller penalties and
may be temporary in nature. Congress is likely to consider similar legislation during its
109th session.
21 Id.
22 Id.

---