Overview of Federal Statutory Health Care Provider Conscience Protections
A number of Federal statutes protect health care provider conscience rights. The Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment, collectively known as the “federal health care provider conscience protection statutes,” prohibit recipients of certain federal funds from discriminating against health care providers based on their refusal to participate in certain health care services they find religiously or morally objectionable.
The conscience provisions contained in 42 U.S.C. § 300a-7 et seq., collectively known as the “Church Amendments,” were enacted in the 1970s to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions. This provision also extends protections to personnel decisions and prohibits any entity that receives a grant, contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating against any physician or other health care personnel in employment because the individual either performed, or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions.
Enacted in 1996, section 245, contained in 42 U.S.C. § 238(n), prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity: 1) refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions; 2) refuses to make arrangements for such activities; or 3) attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.
Weldon Amendment was originally passed as part of the HHS appropriation and has been readopted (or incorporated by reference) in each subsequent HHS appropriations act since 2005. It provides that “[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] 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.” It also defines “health care entity” to include “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.”
The Affordable Care Act (Pub. L. No. 111-148 as amended by Pub. L. No. 111-152) includes new health care provider conscience protections within the health insurance Exchange program. Section 1303(b)(4) of the Act provides that “No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.” A recent Executive Order affirms that under the Affordable Care Act, longstanding federal health care provider conscience laws remain intact, and new protections prohibit discrimination against health care facilities and health care providers based on their unwillingness to provide, pay for, provide coverage of, or refer for abortions. Executive Order 13535, “Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act” (March 24, 2010).