[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4828 Introduced in House (IH)]
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114th CONGRESS
2d Session
H. R. 4828
To prevent governmental discrimination against providers of health
services who decline involvement in abortion, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 22, 2016
Mr. Fleming (for himself and Mrs. Hartzler) introduced the following
bill; which was referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To prevent governmental discrimination against providers of health
services who decline involvement in abortion, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Conscience Protection Act of 2016''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) Thomas Jefferson stated a conviction common to our
Nation's founders when he declared in 1809 that ``[n]o
provision in our Constitution ought to be dearer to man than
that which protects the rights of conscience against the
enterprises of the civil authority''.
(2) In 1973, the Supreme Court concluded that the
government must leave the abortion decision ``to the medical
judgment of the pregnant woman's attending physician'',
recognizing that a physician may choose not to participate in
abortion. Roe v. Wade, 410 U.S. 113, 164 (1973). The Court
cited with approval a policy that ``neither physician,
hospital, nor hospital personnel shall be required to perform
any act violative of personally-held moral principles'', 410
U.S. at 143 n. 38, and cited State laws upholding this
principle. Doe v. Bolton, 410 U.S. 179, 197-8 (1973).
(3) Congress's enactments to protect this right of
conscience in health care include the Church amendment of 1973
(42 U.S.C. 300a-7), the Coats/Snowe amendment of 1996 (42
U.S.C. 238n), and the Hyde/Weldon amendment approved by
Congresses and Presidents of both parties every year since
2004.
(4) None of these laws explicitly provides a ``private
right of action'' so victims of discrimination can defend their
conscience rights in court, and administrative enforcement by
the Department of Health and Human Services Office for Civil
Rights has been lax, at times allowing cases to languish for
years without resolution.
(5) Defying the Federal Hyde/Weldon amendment, California's
Department of Managed Health Care has mandated coverage for all
elective abortions in all health plans under its jurisdiction.
Other States such as New York and Washington have taken or
considered similar action, and some States may go farther to
require all physicians and hospitals to provide or facilitate
abortions.
(6) Members of Congress have repeatedly questioned U.S.
Health and Human Services Secretary Sylvia Burwell about
California's ongoing violation which began in August 2014. The
Department of Health and Human Services has acknowledged
California's violations and indicated that the Department was
taking them ``seriously'' and that the matter would be resolved
``expeditiously''. Despite numerous complaints and calls for
prompt enforcement of the Hyde/Weldon amendment in California,
however, the Department has failed to resolve the matter.
(7) The vast majority of medical professionals do not
perform abortions, with 86 percent of ob/gyns unwilling to
provide them in a recent study (Obstetrics & Gynecology, Sept.
2011) and the great majority of hospitals choosing to do so in
rare cases or not at all. Therefore, a policy requiring all
health care providers to be involved in abortion could
seriously disrupt the health care system, reducing the number
and diversity of providers available to serve the basic health
needs of American women and men.
(8) A health care provider's decision not to participate in
an abortion, like Congress's decision not to fund most
abortions, erects no new barrier to those seeking to perform or
undergo abortions but leaves each party free to act as he or
she wishes.
(9) Such protection poses no conflict with other Federal
laws, such as the law requiring emergency stabilizing treatment
for a pregnant woman and her unborn child when either is in
distress (Emergency Medical Treatment and Active Labor Act). As
the Obama administration has said, these areas of law have
operated side by side for many years and both should be fully
enforced (76 Federal Register 9968-77 (2011) at 9973).
(10) Reaffirming longstanding Federal policy on conscience
rights and providing a right of action in cases where it is
violated allows longstanding and widely supported Federal laws
to work as intended.
SEC. 3. GOVERNMENTAL DISCRIMINATION AGAINST PROVIDERS OF HEALTH
SERVICES THAT ARE NOT INVOLVED IN ABORTION.
Title II of the Public Health Service Act (42 U.S.C. 202 et seq.)
is amended by inserting after section 245 the following:
``SEC. 245A. GOVERNMENTAL DISCRIMINATION AGAINST PROVIDERS OF HEALTH
SERVICES THAT ARE NOT INVOLVED IN ABORTION.
``(a) In General.--Notwithstanding any other law, the Federal
Government, and any State or local government that receives Federal
financial assistance, may not penalize, retaliate against, or otherwise
discriminate against a health care provider on the basis that the
provider does not--
``(1) perform, refer for, pay for, or otherwise participate
in abortion;
``(2) provide or sponsor abortion coverage; or
``(3) facilitate or make arrangements for any of the
activities specified in this subsection.
``(b) Rule of Construction.--Nothing in this section shall be
construed--
``(1) to prevent any health care provider from voluntarily
electing to participate in abortions or abortion referrals;
``(2) to prevent any health care provider from voluntarily
electing to provide or sponsor abortion coverage or health
benefits coverage that includes abortion;
``(3) to prevent an accrediting agency or a Federal, State
or local government from establishing standards of medical
competency applicable only to those who have knowingly,
voluntarily, and specifically elected to perform abortions, or
from enforcing contractual obligations applicable only to those
who, as part of such contract, knowingly, voluntarily, and
specifically elect to provide abortions;
``(4) to affect, or be affected by, section 1867 of the
Social Security Act (42 U.S.C. 1395dd, commonly referred to as
the `Emergency Medical Treatment and Active Labor Act'); or
``(5) to supersede any law enacted by any State for the
purpose of regulating insurance, except as specified in
subsection (a).
``(c) Administration.--The Secretary shall designate the Director
of the Office for Civil Rights of the Department of Health and Human
Services--
``(1) to receive complaints alleging a violation of this
section, section 245 of this Act, or any of subsections (b)
through (e) of section 401 of the Health Programs Extension Act
of 1973; and
``(2) to pursue the investigation of such complaints in
coordination with the Attorney General.
``(d) Definitions.--For purposes of this section:
``(1) Federal financial assistance.--The term `Federal
financial assistance' means Federal payments to cover the cost
of health care services or benefits, or other Federal payments,
grants, or loans to promote or otherwise facilitate health-
related activities.
``(2) Health care provider.--The term `health care
provider' means--
``(A) an individual physician or other health
professional;
``(B) a hospital, health system, or other health
care facility or organization (including a party to a
proposed merger or other collaborative arrangement
relating to health services, and an entity resulting
therefrom);
``(C) a provider-sponsored organization, an
accountable care organization, or a health maintenance
organization;
``(D) a social services provider that provides or
authorizes referrals for health care services;
``(E) a program of training in the health
professions or an applicant to or participant in such a
program;
``(F) an issuer of health insurance coverage; or
``(G) a group health plan or student health plan,
or a sponsor or administrator thereof.
``(3) State or local government that receives federal
financial assistance.--The term `State or local government that
receives Federal financial assistance' includes every agency
and other governmental unit and subdivision of a State or local
government, if such State or local government, or any agency or
governmental unit or subdivision thereof, receives Federal
financial assistance.
``SEC. 245B. CIVIL ACTION FOR CERTAIN VIOLATIONS.
``(a) In General.--A qualified party may, in a civil action, obtain
appropriate relief with regard to a designated violation.
``(b) Definitions.--For purposes of this section:
``(1) Qualified party.--The term `qualified party' means--
``(A) the Attorney General of the United States; or
``(B) any person or entity adversely affected by
the designated violation.
``(2) Designated violation.--The term `designated
violation' means an actual or threatened violation of--
``(A) section 245 or 245A of this Act; or
``(B) any of subsections (b) through (e) of section
401 of the Health Programs Extension Act of 1973
regarding an objection to abortion.
``(c) Administrative Remedies Not Required.--An action under this
section may be commenced, and relief may be granted, without regard to
whether the party commencing the action has sought or exhausted
available administrative remedies.
``(d) Defendants in Actions Under This Section May Include
Governmental Entities as Well as Others.--
``(1) In general.--An action under this section may be
maintained against, among others, a party that is a Federal or
State governmental entity. Relief in an action under this
section may include money damages even if the defendant is such
a governmental entity.
``(2) Definition.--For the purposes of this subsection, the
term `State governmental entity' means a State, a local
government within a State, and any agency or other governmental
unit or subdivision of a State or of such a local government.
``(e) Nature of Relief.--In an action under this section, the court
shall grant--
``(1) all necessary equitable and legal relief, including,
where appropriate, declaratory relief and compensatory damages,
to prevent the occurrence, continuance, or repetition of the
designated violation and to compensate for losses resulting
from the designated violation; and
``(2) to a prevailing plaintiff, reasonable attorneys' fees
and litigation expenses as part of the costs.''.
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