The History and Effect of Abortion Conscience Clause Laws

Order Code RS21428 Updated February 27, 2006 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. Only one abortion conscience clause bill, S. 1983, has been introduced since the inception of the 109th Congress. Although there has been no major legislative activity with regard to this bill, Congress has, in recent years, passed appropriations legislation that contains conscience clause provisions. 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 that was enacted under H.R. 3010, the FY2006 appropriations bill for the Departments of Labor, Health and Human Services, and Education, and Related Agencies (P.L. 109-149). Legislators are likely to consider adding similar conscience clause provisions to appropriations legislation during the second session of 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 another6. 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 abortionrelated services.9 Nearly a decade after the Danforth amendment, Congress enacted additional conscience clause legislation in the Omnibus Consolidated Rescissions and Appropriations Act of 199610. 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, P.L. 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 P.L. 100-259. 8 20 U.S.C. § 1681 et seq. 9 Id. at § 1688. 10 P.L. 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 199712. 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 patients13. 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 services15. 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 Only one abortion conscience clause bill, S. 1983, has been introduced since the inception of the 109th Congress. Although there has been no legislative action with regard to this bill, Congress did pass appropriations legislation that contained a conscience clause provision during its first session, and legislators are likely to consider adding similar 11 42 U.S.C. §238n(a)(1). 12 P.L. 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 abortionrelated 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 conscience clause provisions to appropriations legislation during the second session of the 109th Congress. 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 abortions16. 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 training17. 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 programs18. 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 109th Congress, legislators have introduced one bill that would expand the abortion nondiscrimination exemption in such a fashion. Known as the Abortion Non-Discrimination Act (ANDA) of 2005, S. 1983 would expand 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. However, there has been no major legislative activity with regard to this bill. Like S. 1983, two ANDA bills that were proposed during the 108th Congress stalled in their respective chambers. Nevertheless, legislators in the 108th Congress inserted a similar conscience clause provision into the FY2005 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, 200520. This 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 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, 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 During the 109th Congress, legislators enacted the FY2006 appropriations bill for the Departments of Labor, Health and Human Services (HHS), and Education, and Related Agencies;23 this legislation contained the identical conscience clause language that was included in the FY2005 Labor/HHS appropriations bill. Like previous law, the effect of the conscience clause language in these appropriations bills 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 provisions, however, greatly increase 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 appropriations provisions, on the other hand, allow 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, these conscience clause provisions may result in a denial of abortion-related services to a significantly expanded number of individuals. Although the conscience clause language that has been included in recent appropriations legislation is similar to the proposed ANDA, it differs in two important respects. First, ANDA would deny all federal funds to entities that engaged in abortionrelated discrimination, but the appropriations provisions deny only those funds available under the Labor/HHS funding bill. Second, the passage of ANDA would result in permanent legislation, while each conscience clause provision included in annual appropriations legislation remains in effect for one year only, unless Congress enacts a similar provision in future appropriations bills. Thus, although these recent conscience clause appropriations provisions are a significant expansion of previous law, they provide for smaller penalties and may be temporary in nature. crsphpgw 21 Id. 22 Id. 23 P.L. 109-149, § 508(d).