Conscience Protection Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 2014 To amend the Public Health Service Act to prohibit governmental discrimina- tion against providers of health services that are not involved in abortion. IN THE HOUSE OF REPRESENTATIVES APRIL 1, 2019 Mr. HARRIS (for himself, Mr. FORTENBERRY, Mr. PALMER, Mr. MEADOWS, Mr. ADERHOLT, Mr. WEBER of Texas, Mr. GAETZ, Mr. DUNCAN, Mr. SCALISE, Mr. WALKER, Mr. SMITH of New Jersey, Mr. LONG, Mr. DAVID P. ROE of Tennessee, Mr. WESTERMAN, Mrs. HARTZLER, Mr. GROTHMAN, Mr. BYRNE, Mr. COLLINS of Georgia, Mr. NORMAN, Mr. ABRAHAM, Mrs. WALORSKI, Mr. FLORES, Mr. LATTA, Mr. AMASH, Mr. MOONEY of West Virginia, Mr. ALLEN, Mr. BANKS, Mr. HUIZENGA, Mr. GIANFORTE, Mr. WILSON of South Carolina, Mr. ROY, Mr. BACON, Mr. RODNEY DAVIS of Illinois, Mr. GALLAGHER, Mr. DUFFY, Mr. GIBBS, Mr. NEWHOUSE, Mr. WALBERG, Mr. CHABOT, Mr. BABIN, Mr. JOYCE of Pennsylvania, Mr. JOHNSON of Louisiana, Mr. BARR, Mr. HICE of Geor- gia, Mr. RATCLIFFE, Mr. JORDAN, Mr. WITTMAN, Mr. GRAVES of Mis- souri, Mr. HILL of Arkansas, Mr. WILLIAMS, Mr. LUETKEMEYER, Mr. OLSON, Mr. HUDSON, Mr. MITCHELL, Mr. BUCSHON, Mr. BUDD, Mr. KELLY of Pennsylvania, Mr. LAMALFA, Mr. COLLINS of New York, Mr. POSEY, Mr. GRIFFITH, Mr. JOHN W. ROSE of Tennessee, Mr. STEWART, Mr. LAMBORN, Mr. BERGMAN, Mr. MARCHANT, Mr. AUSTIN SCOTT of Georgia, Mr. KING of Iowa, Mr. JOHNSON of Ohio, Mr. RESCHENTHALER, Mr. HIGGINS of Louisiana, Mr. GUTHRIE, Mr. BRADY, Mr. COLE, Mr. SMITH of Nebraska, Mr. WATKINS, Mr. CLOUD, Mr. STEUBE, Mr. YOHO, Mr. RUTHERFORD, and Mr. PALAZZO) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Public Health Service Act to prohibit govern- VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2014 IH mental discrimination against providers of health services that are not involved 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 2019’’. 5 SEC. 2. FINDINGS. 6 Congress finds as follows: 7 (1) Thomas Jefferson stated a conviction com- 8 mon to our Nation’s founders when he declared in 9 1809 that ‘‘[n]o provision in our Constitution ought 10 to be dearer to man than that which protects the 11 rights of conscience against the enterprises of the 12 civil authority’’. 13 (2) In 1973, the Supreme Court concluded that 14 the government must leave the abortion decision ‘‘to 15 the medical judgment of the pregnant woman’s at- 16 tending physician’’, recognizing that a physician may 17 choose not to participate in abortion. Roe v. Wade, 18 410 U.S. 113, 164 (1973). The Court cited with ap- 19 proval a policy that ‘‘neither physician, hospital, nor 20 hospital personnel shall be required to perform any 21 act violative of personally-held moral principles’’, 22 410 U.S. at 143 n. 38, and cited State laws uphold- 23 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2014 IH ing this principle. Doe v. Bolton, 410 U.S. 179, 1 197–8 (1973). 2 (3) Congress’ enactments to protect this right 3 of conscience in health care include the Church 4 amendment of 1973 (42 U.S.C. 300a–7), the Coats/ 5 Snowe amendment of 1996 (42 U.S.C. 238n), and 6 the Weldon amendment approved by Congresses and 7 Presidents of both parties every year since 2004. 8 (4) None of these laws explicitly provides a 9 ‘‘private right of action’’ so victims of discrimination 10 can defend their conscience rights in court, and ad- 11 ministrative enforcement by the Department of 12 Health and Human Services Office for Civil Rights 13 has been lax, at times allowing cases to languish for 14 years without resolution. 15 (5) Defying the Federal Weldon amendment, 16 California’s Department of Managed Health Care 17 has mandated coverage for all elective abortions in 18 all health plans under its jurisdiction. Other States 19 such as New York and Washington have taken or 20 considered similar action, and some States may go 21 farther to require all physicians and hospitals to pro- 22 vide or facilitate abortions. On June 21, 2016, the 23 Obama Administration concluded a nearly two-year 24 investigation of this matter by determining that 25 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2014 IH California’s decision to require insurance plans 1 under the California Department for Managed 2 Health Care authority to cover all legal abortion 3 services did not violate the Weldon amendment. 4 Until the new Administration is able to reverse this 5 finding, individuals will have to choose between ig- 6 noring their conscience or forgoing health care cov- 7 erage. 8 (6) The vast majority of medical professionals 9 do not perform abortions, with 86 percent of ob/gyns 10 unwilling to provide them in a recent study (Obstet- 11 rics & Gynecology, Sept. 2011) and the great major- 12 ity of hospitals choosing to do so in rare cases or not 13 at all. 14 (7) A health care provider’s decision not to par- 15 ticipate in an abortion, like Congress’ decision not to 16 fund most abortions, erects no new barrier to those 17 seeking to perform or undergo abortions but leaves 18 each party free to act as he or she wishes. 19 (8) Such protection poses no conflict with other 20 Federal laws, such as the law requiring emergency 21 stabilizing treatment for a pregnant woman and her 22 unborn child when either is in distress (Emergency 23 Medical Treatment and Active Labor Act). As the 24 previous Administration has said, these areas of law 25 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2014 IH have operated side by side for many years and both 1 should be fully enforced (76 Fed. Reg. 9968–77 2 (2011) at 9973). 3 (9) Reaffirming longstanding Federal policy on 4 conscience rights and providing a right of action in 5 cases where it is violated allows longstanding and 6 widely supported Federal laws to work as intended. 7 SEC. 3. PROHIBITING GOVERNMENTAL DISCRIMINATION 8 AGAINST PROVIDERS OF HEALTH SERVICES 9 THAT ARE NOT INVOLVED IN ABORTION. 10 Title II of the Public Health Service Act (42 U.S.C. 11 202 et seq.) is amended by inserting after section 245 the 12 following: 13 ‘‘SEC. 245A. PROHIBITING GOVERNMENTAL DISCRIMINA- 14 TION AGAINST PROVIDERS OF HEALTH SERV- 15 ICES THAT ARE NOT INVOLVED IN ABORTION. 16 ‘‘(a) IN GENERAL.—Notwithstanding any other law, 17 the Federal Government, and any State or local govern- 18 ment that receives Federal financial assistance, may not 19 penalize, retaliate against, or otherwise discriminate 20 against a health care provider on the basis that the pro- 21 vider does not— 22 ‘‘(1) perform, refer for, pay for, or otherwise 23 participate in abortion; 24 ‘‘(2) provide or sponsor abortion coverage; or 25 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2014 IH ‘‘(3) facilitate or make arrangements for any of 1 the activities specified in this subsection. 2 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec- 3 tion shall be construed— 4 ‘‘(1) to prevent any health care provider from 5 voluntarily electing to participate in abortions or 6 abortion referrals; 7 ‘‘(2) to prevent any health care provider from 8 voluntarily electing to provide or sponsor abortion 9 coverage or health benefits coverage that includes 10 abortion; 11 ‘‘(3) to prevent an accrediting agency, the Fed- 12 eral Government, or a State or local government 13 from establishing standards of medical competency 14 applicable only to those who have knowingly, volun- 15 tarily, and specifically elected to perform abortions, 16 or from enforcing contractual obligations applicable 17 only to those who, as part of such contract, know- 18 ingly, voluntarily, and specifically elect to provide 19 abortions; 20 ‘‘(4) to affect, or be affected by, section 1867 21 of the Social Security Act (42 U.S.C. 1395dd, com- 22 monly referred to as the ‘Emergency Medical Treat- 23 ment and Active Labor Act’); or 24 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2014 IH ‘‘(5) to supersede any law enacted by any State 1 for the purpose of regulating insurance, except as 2 specified in subsection (a). 3 ‘‘(c) ADMINISTRATION.—The Secretary shall des- 4 ignate the Director of the Office for Civil Rights of the 5 Department of Health and Human Services— 6 ‘‘(1) to receive complaints alleging a violation of 7 this section, section 245 of this Act, or any of sub- 8 sections (b) through (e) of section 401 of the Health 9 Programs Extension Act of 1973; and 10 ‘‘(2) to pursue the investigation of such com- 11 plaints in coordination with the Attorney General. 12 ‘‘(d) DEFINITIONS.—For purposes of this section: 13 ‘‘(1) FEDERAL FINANCIAL ASSISTANCE.—The 14 term ‘Federal financial assistance’ means Federal 15 payments to cover the cost of health care services or 16 benefits, or other Federal payments, grants, or loans 17 to promote or otherwise facilitate health-related ac- 18 tivities. 19 ‘‘(2) HEALTH CARE PROVIDER.—The term 20 ‘health care provider’ means— 21 ‘‘(A) an individual physician, nurse, or 22 other health care professional; 23 ‘‘(B) a hospital, health system, or other 24 health care facility or organization (including a 25 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2014 IH party to a proposed merger or other collabo- 1 rative arrangement relating to health services, 2 and an entity resulting therefrom); 3 ‘‘(C) a provider-sponsored organization, an 4 accountable care organization, or a health 5 maintenance organization; 6 ‘‘(D) a social services provider that pro- 7 vides or authorizes referrals for health care 8 services; 9 ‘‘(E) a program of training in the health 10 professions or an applicant to or participant in 11 such a program; 12 ‘‘(F) an issuer of health insurance cov- 13 erage; or 14 ‘‘(G) a group health plan or student health 15 plan, or a sponsor or administrator thereof. 16 ‘‘(3) STATE OR LOCAL GOVERNMENT THAT RE- 17 CEIVES FEDERAL FINANCIAL ASSISTANCE.—The 18 term ‘State or local government that receives Fed- 19 eral financial assistance’ includes every agency and 20 other governmental unit and subdivision of a State 21 or local government, if such State or local govern- 22 ment, or any agency or governmental unit or sub- 23 division thereof, receives Federal financial assist- 24 ance. 25 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2014 IH ‘‘SEC. 245B. CIVIL ACTION FOR CERTAIN VIOLATIONS. 1 ‘‘(a) IN GENERAL.—A qualified party may, in a civil 2 action, obtain appropriate relief with regard to a des- 3 ignated violation. 4 ‘‘(b) DEFINITIONS.—For purposes of this section: 5 ‘‘(1) QUALIFIED PARTY.—The term ‘qualified 6 party’ means— 7 ‘‘(A) the Attorney General of the United 8 States; or 9 ‘‘(B) any person or entity adversely af- 10 fected by the designated violation. 11 ‘‘(2) DESIGNATED VIOLATION.—The term ‘des- 12 ignated violation’ means an actual or threatened vio- 13 lation of— 14 ‘‘(A) section 245 or 245A of this Act; or 15 ‘‘(B) any of subsections (b) through (e) of 16 section 401 of the Health Programs Extension 17 Act of 1973 regarding an objection to abortion. 18 ‘‘(c) ADMINISTRATIVE REMEDIES NOT REQUIRED.— 19 An action under this section may be commenced, and relief 20 may be granted, without regard to whether the party com- 21 mencing the action has sought or exhausted available ad- 22 ministrative remedies. 23 ‘‘(d) DEFENDANTS IN ACTIONS UNDER THIS SEC- 24 TION MAY INCLUDE GOVERNMENTAL ENTITIES AS WELL 25 AS OTHERS.— 26 VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2014 IH ‘‘(1) IN GENERAL.—An action under this sec- 1 tion may be maintained against, among others, a 2 party that is a Federal or State governmental entity. 3 Relief in an action under this section may include 4 money damages even if the defendant is such a gov- 5 ernmental entity. 6 ‘‘(2) DEFINITION.—For the purposes of this 7 subsection, the term ‘State governmental entity’ 8 means a State, a local government within a State, 9 and any agency or other governmental unit or sub- 10 division of a State or of such a local government. 11 ‘‘(e) NATURE OF RELIEF.—In an action under this 12 section, the court shall grant— 13 ‘‘(1) all necessary equitable and legal relief, in- 14 cluding, where appropriate, declaratory relief and 15 compensatory damages, to prevent the occurrence, 16 continuance, or repetition of the designated violation 17 and to compensate for losses resulting from the des- 18 ignated violation; and 19 ‘‘(2) to a prevailing plaintiff, reasonable attor- 20 neys’ fees and litigation expenses as part of the 21 costs.’’. 22 Æ VerDate Sep 11 2014 19:18 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H2014.IH H2014 pamtmann on DSKBFK8HB2PROD with BILLS