Conscience Protection Act of 2021

II 117TH CONGRESS 1ST SESSION S. 401 To amend the Public Health Service Act to prohibit governmental discrimina- tion against health care providers that do not participate in abortion. IN THE SENATE OF THE UNITED STATES FEBRUARY 24, 2021 Mr. LANKFORD (for himself, Mr. TILLIS, Mr. SCOTT of South Carolina, Mr. PORTMAN, Mr. RISCH, Mr. MORAN, Mr. DAINES, Mrs. FISCHER, Mr. BOOZMAN, Mr. MARSHALL, Mr. CASSIDY, Mr. CRAMER, Mrs. HYDE- SMITH, Mr. BARRASSO, Mr. THUNE, Mr. HOEVEN, Mr. SASSE, Mr. INHOFE, Mrs. BLACKBURN, Mr. ROUNDS, Ms. LUMMIS, Mr. HAWLEY, Mr. SCOTT of Florida, Mr. LEE, and Mr. HAGERTY) introduced the fol- lowing bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Public Health Service Act to prohibit govern- mental discrimination against health care providers that do not participate in abortion. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Conscience Protection 4 Act of 2021’’. 5 SEC. 2. FINDINGS. 6 Congress finds as follows: 7 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 401 IS (1) Thomas Jefferson stated a conviction com- 1 mon to our Nation’s founders when he declared in 2 1809 that ‘‘[n]o provision in our Constitution ought 3 to be dearer to man than that which protects the 4 rights of conscience against the enterprises of the 5 civil authority’’. 6 (2) In 1973, the Supreme Court concluded that 7 the government must leave the abortion decision ‘‘to 8 the medical judgment of the pregnant woman’s at- 9 tending physician’’, recognizing that a physician may 10 choose not to participate in abortion. Roe v. Wade, 11 410 U.S. 113, 164 (1973). The Court cited with ap- 12 proval a policy that ‘‘neither physician, hospital, nor 13 hospital personnel shall be required to perform any 14 act violative of personally-held moral principles’’, 15 410 U.S. at 143 n. 38, and cited State laws uphold- 16 ing this principle. Doe v. Bolton, 410 U.S. 179, 17 197–8 (1973). 18 (3) Religious diversity adds to the strength of 19 our medical field, and no doctor should have to 20 choose between giving up their faith or moral convic- 21 tions and abandoning a vital medical mission. Con- 22 gress’ enactments to protect this right of conscience 23 in health care include the Church amendments (42 24 U.S.C. 300a–7), the Coats/Snowe amendment (42 25 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 401 IS U.S.C. 238n), and the Weldon amendment approved 1 by Congresses and Presidents of both parties every 2 year since 2004 (including in section 507(d) of divi- 3 sion A of the Further Consolidated Appropriations 4 Act, 2020 (Public Law 116–94; 133 Stat. 2534, 5 2607)). 6 (4) Courts have declined to find that these laws 7 provide a ‘‘private right of action’’ thereby leaving 8 victims of discrimination unable to defend their con- 9 science rights in court, while at the same time ad- 10 ministrative enforcement by the Office for Civil 11 Rights of the Department of Health and Human 12 Services has been inconsistent, at times allowing 13 cases to languish for years without resolution. 14 (5) Defying the Weldon amendment, Califor- 15 nia’s Department of Managed Health Care has man- 16 dated coverage for elective abortions in all health 17 plans under its jurisdiction. Other States such as 18 New York, Illinois, and Washington have taken or 19 considered similar action, and some States may go 20 farther to require all physicians and hospitals to pro- 21 vide or facilitate abortions. On June 21, 2016, the 22 Office for Civil Rights of the Department of Health 23 and Human Services under the Obama Administra- 24 tion concluded a nearly 2-year investigation of this 25 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 401 IS matter by determining that California’s decision to 1 require insurance plans under the California Depart- 2 ment for Managed Health Care authority to cover 3 abortion services did not violate the Weldon amend- 4 ment. At least 28,000 individuals and families sub- 5 sequently lost abortion-free health plans as a result 6 of this mandate. 7 (6) On January 24, 2020, the Office for Civil 8 Rights of the Department of Health and Human 9 Services disavowed its prior findings and issued a 10 notice of violation of the Weldon amendment to Cali- 11 fornia. After the State’s continued noncompliance 12 with the Weldon amendment, the Centers for Medi- 13 care & Medicaid Services, on December 16, 2020, 14 announced the disallowance of $200,000,000 per 15 quarter in Federal funds to California beginning in 16 the first quarter of 2021. Unless the Biden Adminis- 17 tration provides effective and continuing enforce- 18 ment against California and other States, individuals 19 will continue to be coerced contrary to law into 20 choosing between violating their consciences or for- 21 going health care coverage for themselves, their em- 22 ployees, or their families. 23 (7) On May 21, 2019, the Secretary of Health 24 and Human Services issued a final conscience rule 25 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 401 IS that implements approximately 25 Federal con- 1 science protection provisions and provides mecha- 2 nisms to enforce protections enacted by Congress to 3 ensure that the government and government-funded 4 entities are not unlawfully discriminating against in- 5 dividuals, health care providers, or health care enti- 6 ties. Despite this regulation providing for enforce- 7 ment of laws passed by Congress, a Federal district 8 court vacated the rule. Now, litigation is pending be- 9 fore the United States Court of Appeals for the Sec- 10 ond Circuit where 78 members of Congress have 11 filed a brief in support of the rule, as well as the 12 United States Court of Appeals for the Ninth Cir- 13 cuit. Litigation in both Circuits have been halted be- 14 cause the Biden Administration has indicated its in- 15 tent to revisit the rule. 16 (8) The vast majority of medical professionals 17 do not perform abortions, with up to 86 percent of 18 obstetricians/gynecologists unwilling to provide them 19 (Obstetrics & Gynecology, Sept. 2011) and the great 20 majority of hospitals choosing to do so only in rare 21 cases or not at all. 22 (9) A health care provider’s decision not to par- 23 ticipate in an abortion, like Congress’ decision not to 24 fund most abortions, erects no barrier to those seek- 25 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 401 IS ing to perform or undergo abortions but leaves each 1 party free to act as he or she wishes. 2 (10) Such protection poses no conflict with 3 other Federal laws, such as the law requiring stabi- 4 lizing treatment for a pregnant woman and her un- 5 born child when either needs emergency care (Emer- 6 gency Medical Treatment and Active Labor Act). As 7 previous Administrations have said, these areas of 8 law have operated side by side for many years and 9 both should be fully enforced (76 Fed. Reg. 9968– 10 77 (2011) at 9973). 11 (11) Reaffirming longstanding Federal policy 12 on conscience rights and providing a right of action 13 in cases where it is violated allows longstanding and 14 widely supported Federal laws to work as intended. 15 SEC. 3. PROHIBITING DISCRIMINATION AGAINST HEALTH 16 CARE PROVIDERS THAT DO NOT PARTICI- 17 PATE IN ABORTION. 18 Title II of the Public Health Service Act (42 U.S.C. 19 202 et seq.) is amended by inserting after section 245 the 20 following: 21 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 401 IS ‘‘SEC. 245A. PROHIBITING DISCRIMINATION AGAINST 1 HEALTH CARE PROVIDERS THAT DO NOT 2 PARTICIPATE IN ABORTION. 3 ‘‘(a) IN GENERAL.—Notwithstanding any other law, 4 the Federal Government, and any person or entity that 5 receives Federal financial assistance, including any State 6 or local government, may not penalize, retaliate against, 7 or otherwise discriminate against a health care provider 8 on the basis that the provider does not or declines to— 9 ‘‘(1) perform, refer for, pay for, or otherwise 10 participate in abortion; 11 ‘‘(2) provide or sponsor abortion coverage; or 12 ‘‘(3) facilitate or make arrangements for any of 13 the activities specified in this subsection. 14 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec- 15 tion shall be construed— 16 ‘‘(1) to prevent any health care provider from 17 voluntarily electing to participate in abortions or 18 abortion referrals where not prohibited by any other 19 law; 20 ‘‘(2) to prevent any health care provider from 21 voluntarily electing to provide or sponsor abortion 22 coverage or health benefits coverage that includes 23 abortion where not prohibited by any other law; 24 ‘‘(3) to prevent an accrediting agency, the Fed- 25 eral Government, or a State or local government 26 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 401 IS from establishing standards of medical competency 1 applicable only to those who have knowingly, volun- 2 tarily, and specifically elected to perform abortions, 3 or from enforcing contractual obligations applicable 4 only to those who, as part of such contract, know- 5 ingly, voluntarily, and specifically elect to provide 6 abortions; 7 ‘‘(4) to affect, or be affected by, section 1867 8 of the Social Security Act (42 U.S.C. 1395dd, com- 9 monly referred to as the ‘Emergency Medical Treat- 10 ment and Active Labor Act’); or 11 ‘‘(5) to supersede any law enacted by any State 12 for the purpose of regulating insurance, except as 13 specified in subsection (a). 14 ‘‘(c) ADMINISTRATION.—The Secretary— 15 ‘‘(1) may issue regulations under— 16 ‘‘(A) this section; 17 ‘‘(B) the Religious Freedom Restoration 18 Act of 1993 (42 U.S.C. 2000bb et seq.), with 19 respect to any program or activity funded, ad- 20 ministered, or conducted by the Department of 21 Health and Human Services; 22 ‘‘(C) any of subsections (b) through (e) of 23 section 401 of the Health Programs Extensions 24 Act of 1973 (42 U.S.C. 300a–7) regarding an 25 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 401 IS objection based on a religious belief or moral 1 conviction; and 2 ‘‘(D) any other law protecting the exercise 3 of conscience or religious freedom under pro- 4 grams or activities funded, administered, or 5 conducted by the Department of Health and 6 Human Services, including any laws listed 7 under the final rule issued by the Secretary of 8 Health and Human Services titled ‘Protecting 9 Statutory Conscience Rights in Health Care; 10 Delegations of Authority’ (84 Fed. Reg. 23170; 11 May 21, 2019); 12 ‘‘(2) shall designate the Director of the Office 13 for Civil Rights of the Department of Health and 14 Human Services— 15 ‘‘(A) to receive complaints alleging a viola- 16 tion of any provision of this section or any pro- 17 vision of law referred to or listed under para- 18 graph (1); and 19 ‘‘(B) to promptly investigate such com- 20 plaints, issue findings, and require corrective 21 action in cases of such a violation; and 22 ‘‘(3) shall, as permitted under law (including 23 the Constitution of the United States), induce com- 24 pliance of a person or entity, including a State or 25 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 401 IS local government, refusing to comply with a provi- 1 sion of this section, or any provision of law referred 2 to or listed under paragraph (1), by terminating, in 3 whole or in part, any Federal financial assistance 4 provided by the Secretary to such person or entity. 5 ‘‘(d) DEFINITIONS.—For purposes of this section: 6 ‘‘(1) FEDERAL FINANCIAL ASSISTANCE.—The 7 term ‘Federal financial assistance’ means Federal 8 payments to cover the cost of health care services or 9 benefits, or other Federal payments, grants, or loans 10 to promote or otherwise facilitate health-related ac- 11 tivities. 12 ‘‘(2) HEALTH CARE PROVIDER.—The term 13 ‘health care provider’ includes— 14 ‘‘(A) an individual physician, health care 15 assistant, nurse, pharmacist, health researcher, 16 or other health care personnel; 17 ‘‘(B) a hospital, laboratory, pharmacy, 18 health system, or other health care or medical 19 research facility or organization (including a 20 party to a proposed merger or other collabo- 21 rative arrangement relating to health services, 22 and an entity resulting therefrom); 23 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 401 IS ‘‘(C) a provider-sponsored organization, an 1 accountable care organization, or a health 2 maintenance organization; 3 ‘‘(D) a social services provider that pro- 4 vides or authorizes referrals for health care 5 services; 6 ‘‘(E) a program of training or education in 7 the health professions or medical research, a 8 participant in such a program, or any individual 9 applying or otherwise aspiring to participate in 10 such a program; 11 ‘‘(F) an issuer of health insurance cov- 12 erage or of a health plan; or 13 ‘‘(G) a health care sharing ministry; 14 ‘‘(H) a health insurance plan, including 15 group, individual, or student health plans, or a 16 sponsor or administrator thereof; or 17 ‘‘(I) any other health care organization, 18 program, facility, or plan. 19 ‘‘(3) STATE OR LOCAL GOVERNMENT.—The 20 term ‘State or local government’ includes every 21 agency and other governmental unit and subdivision 22 of a State or local government, if such State or local 23 government, or any agency or governmental unit or 24 VerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 401 IS subdivision thereof, receives Federal financial assist- 1 ance. 2 ‘‘SEC. 245B. CIVIL ACTION FOR CERTAIN VIOLATIONS. 3 ‘‘(a) IN GENERAL.—A qua [Text truncated for display. Full text available on Congress.gov.]