Testimony Re: Abortion Non-Discrimination Act
The Committee on Energy and Commerce
W.J. "Billy" Tauzin, Chairman
Subcommittee on Health
July 11, 2002
3:00 PM
2123 Rayburn House Office Building
Prepared Witness Testimony
I. Introduction
Today a growing number of health care practices, procedures, and
medications present serious moral concerns for many health care providers.
Recent medical and pharmacological developments increasingly put health care
entities at the vortex of some of society's most controversial moral
dilemmas. These include issues relating to providing, performing,
participating in or facilitating as abortion (both by traditional surgical
methods and also by chemical methods such as the "Morning After Pill"),
human cloning, embryonic stem cell techniques, genetic engineering including
sex preselection, DNA screening for genetic disorders, sterilization,
contraception, sex-change, euthanasia, assisted suicide, and capital
punishment by lethal injection, to name just a few medically-related
practices with profound moral implications. Increasingly there is pressure
upon health care providers, both individuals and organizations (such as
clinics, hospitals, practice groups, and insurers) to put aside personal
moral beliefs in order to facilitate convenient access to new drugs,
procedures, and technologies.
In the ordinary course of professional life, without any additional
pressures, these dilemmas arise often enough to create crises for tens of
thousands of health care entities. However, in addition to these dilemmas
there is increasing pressures upon health care participants to facilitate or
provide products or services which violate their own consciences. Advocates
of particular procedures and programs, particularly major providers of
promoters of abortion are systematically singling out health care providers
and entities to squeeze and compel them to abandon their moral values as the
price to pay to remain in the profession and market.
II. Overview of the
Development of the Crisis of Conscience
I have closely studied abortion law and policy in the United States for
thirty years, and have seen the transformation. Initially, advocates of
permissive abortion argued that they merely desired to give women the
private choice to select abortion. They asserted that they did not intend to
force anyone to do anything, but only sought to repeal laws that prohibited
one option - abortion -- that they believed should be available to pregnant
women.
However, after that goal was achieved by judicial decree, it was not long
before they demanded that public funds be available, that public hospitals
should be forced to provide the service which they considered so desirable.
In a series of cases, they repeatedly tried to get the Supreme Court to
interpret the Constitution so as to invalidate laws that restricted public
funding and provision of abortion in public hospitals. Fortunately, the U.S.
Supreme Court turned them down every time. Sadly, a number of state courts
have not been so fair, and have accepted these zealots' demands that the
state constitutions be interpreted to judicially mandate public funding of
abortion.
Then they tried to stop citizens who wished to exercise their right to
peacefully assemble in opposition to abortion, and to punish individuals who
tried to offer free, peaceful "sidewalk counseling" to pregnant women to
advise them about alternatives to abortion. While the Supreme Court has
invalidated many (but not all) of such laws and decrees, the effort to
suppress pro-life free speech continues, led ironically by the same
organizations that championed "the right to choose."
Just a few years ago, they attempted to enact regulations for accrediting
medical schools and teaching hospitals to force medical students and young
doctors to be trained to perform abortions. Congress had to step forward and
pass a law to prevent that coercion and to protect the rights of conscience
of medical students, doctors and hospitals.
Recently, there have been a series of attempts to compel hospitals,
health care groups, and other hare care organizations to either provide
abortion services or to be denied the license, permission or opportunity to
engage in the health care service. Also, there have been attempts to mandate
that health care insurers and private employers provide coverage and pay for
abortion services.
The Supreme Court has declared that the Constitution protects private
choice of abortion against state prohibition. The Court has emphasized that
it does not compel public assistance, support or facilitation of abortion.
The decisions can be read as neutrality decisions - the state must not use
its power to coerce a decision one way or another regarding
childbirth or abortion. The government may prefer, persuade, encourage, and
promote one way or the other, but it may not compel.
The private choice to decline to participate in abortion deserves no less
protection than the choice to participate in abortion.
Yet zealous abortion activists continue to try to use the powers of
government to compel participation in and payment for and coverage of
abortion. Specifically, they try to compel hospitals, clinics, provider
groups, and health care insurers to provide facilities for, personnel for,
and funding for abortion.
III. Examples of Abuses of Rights of Conscience
In repeated cases, pro-abortion extremists are trying (successfully in
many cases) to assert the position that a health care entity who will not
perform abortions must be denied access to the public market. For instance,
currently there is a battle in New Jersey in which pro-abortion zealots are
trying to stop the merger of a secular hospital with a religious hospital
group because that will result in the hospital not performing abortions.
Rather than helping some abortion clinic in the area to expand or operate
more actively in the area, the pro-abortion zealots are taking the position
that a hospital who does not perform abortion must be disqualified from
participating in the health care profession.
In recent years, there have been a number of incidents involving apparent
violations of the rights of conscience of health care workers in the United
States. Well known is the attempt by the ACGME to require all Ob/Gyn
residents in all Ob/Gyn programs be trained to perform abortions. During the
1999 California legislative session, a bill was introduced that would have,
among other things, disallowed hospitals that decline to participate in
abortion from receiving public financing or state-funded health care
contracts. In Connecticut, after abortion rights activists learned that an
outpatient surgical center proposed by four hospitals would not perform
abortion and sterilizations, they formed a coalition to defeat the proposed
center and intervened in Certificate of Need proceedings and the Connecticut
Office of Health Care Access refused to issue a certificate. Incidents in
which hospital mergers to help struggling hospitals survive have occurred in
New Hampshire, Florida, and New York, as well. I cite just a few headlines
from the Protection of Conscience website: "Nurse Refused Employment, Forced
to Resign" (she refused to participate in abortions); "Worker fired for
refusing payment for illegal abortion (refused to sign for welfare payment
for abortion); "Hospital Aide Fired for Refusing to Clean Abortion
Instruments"; "Kmart Pharmacist Fired for Refusing to Dispense
Abortifacient" (other workers had done it for her); "Student pressured to
participate in abortion"( in Saskatchewan, Canada, 1999); "Foothills
Hospital Now Forces Nurses To Participate In Genetic Terminations" (nurses
angry about being forced to participate in abortion of imperfect and late
term babies); and "More DC Medics Say They Were Forced to Have Abortions."
Michael Bloomberg, the new Mayor of New York, now compels abortion training
as an "additional required component to OB/GYN residency programs in all New
York City city-owned hospitals. The training is outlined in Michael
Bloomberg's Blueprint for Public Health along with a proposal requiring
victims of sexual assault to be given emergency contraception when taken to
emergency rooms. Previously, only 2 out of the 11 public hospitals include
abortion as part of their training. The training will teach OB/GYNs how to
perform abortions and provide counseling." News reports say that Bloomberg's
plan "allows residents who object to abortion on moral grounds to forego the
training." But what pro-abortion politicians consider an appropriate
exemption for rights of conscience often turns out to be mere eye wash,
narrow, ineffective and cynical. "[T]he media mogul . . . reportedly once
told a pregnant employee to "Kill it! Kill it!" (The comment, which
Bloomberg has denied making, was cited in the legal papers of Sekiko Sakai
Garrison, a former Bloomberg News staffer who brought one of three
publicized sex-harassment cases against him or his company.)"
These examples reveal only the tip of the iceberg. A landmark empirical
study of, inter alia, nurses attitudes about and difficulties
encountered because of personal objection to abortion and other medical
procedures in the 1980s revealed that approximately 5% of the nurses sampled
(which extrapolated out would amount to approximately 50,000 nurses in the
United States) perceived that their assignment and promotion opportunities
may be limited by their moral and religious beliefs about abortion. The
nurses in this sample "identified a total of 103 definite cases in which
nurses had either been dismissed or had their opportunities limited because
of moral beliefs. . . . [F]ifty-seven cases were identified in which the
nurses beliefs about abortion had cost them opportunities for promotion or
sustained employment." Moreover,
[a]pproximately 7% of Catholic nurses, 4% of Protestant nurses, and
6% of those belonging to 'other' religions indicated they knew at least
one other person whose opportunities with hospitals had been limited by
personal beliefs. . . . Thirty-six nurses [in the national sample]
identified a total of 118 of their colleagues who had been limited as a
result of their moral and religious beliefs.
IV. Existing Conscience Clause Protection Laws
These incidents attempt to circumvent existing laws enacted by Congress
and 49 states enacted to provide some protection for the rights of
conscience of health care workers in at least some situations. The laws,
called "conscience clauses" generally are drafted to protect the right of
health care professional to refuse to participate in providing a service or
procedure to which they have religious or other moral objections. Conscience
clauses have been enacted by both federal and state law makers. Sadly, many
of these laws are outdate, addressing concerns that are nearly 30 years old,
but not address the more recent threats to rights of conscience. Conscience
clauses can be traced to a specific judicial decision that provoked a
firestorm of controversy. In November 1972 a United States District Court in
Billings, Montana issued an injunction forbidding a Catholic hospital to
deny the use of its facilities to a physician who wanted to perform a
sterilization on a patient there. The suit to enjoin the hospital was
brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, which provide redress
for deprivation of civil rights under color of state law. The district court
ruled that the fact that the hospital had received public funds under the
federal Hill-Burton Act was alone sufficient to make the hospital a "state
actor" for purposes of those civil rights statutes. The next year, in direct
response to that ruling, and just months after the Supreme Court's decision
in Roe v. Wade, Congress passed the Church Amendment, the original
federal conscience clause, 42 U.S.C. § 300a-7, which was designed to
prohibit a court or a public official from using receipt of federal grants
or assistance under three specific acts, as a basis for requiring any
individual or institution to perform or assist in performing abortions or
sterilizations, if such would be contrary to religious or moral beliefs.
Because of the Supreme Court decision in Roe effectively required all
states to legalize nontherapeutic abortion on demand, the conscience clause
movement became immediately relevant, and most states enacted conscience
clauses to protect the right of at least some health care providers to
refuse to perform or participate in abortions.
The Church Amendment is still the main federal protection for the rights
of conscience of health care providers. Additionally, Title VII of the Civil
Rights Act requires employers generally to accommodate the religious beliefs
of their employees that do not cause undue hardship.
Also, in 1997 Congressional "amendments extend[ed] conscience protections
to cover Medicaid and Medicare managed care plans, which may now refuse to
'provide, reimburse for, or provide coverage of a counseling or referral
service if the . . . organization offering the plan . . . objects to the
provision of such service on moral or religious grounds . . . .'"
Forty-nine states provide at least some protection for rights of
conscience of some health care providers in some circumstances. (Only
Vermont has no statutory protection for rights of conscience whatever.)
However, only one state, Illinois, has a comprehensive conscience protection
law that covers all health care providers, institutions, and payers and
applies to all health care services. One other state, Washington, protects
the right of conscience to refuse to participate in any health care services
and covers all individuals but only religiously-affiliated institutions.
Abortion is the focus of most conscience clauses. Forty-five states allow
some health care workers to refuse to participate in abortions. Twenty-five
states' conscience clauses cover only abortion. Ten states allow
health care workers to exercise their right of conscience to not participate
in abortion only if working for individuals or private institutions. Two
states conscience protection laws cover abortion but apply only when the
health care provider is an individual, and one other state has a similar
restriction covering sterilization also. Four states cover specifically
abortion and contraception. One state covers health care providers regarding
abortion, sterilization and artificial insemination, and another covers only
abortion, abortifacients, and sterilization. At least three states
(California, Mississippi and New Hampshire, and I suspect more but have not
done the research) protect a right of health workers to decline to
participate in some end-of-life decision implementations in limited
circumstances. Two states cover counselors and social workers in some
contexts. One state protects the right of pharmacists to not participate in
abortion, assisted suicide and euthanasia. Eleven states protect the rights
of conscience of medical and nursing students in some situations. Only nine
of the sixteen states that mandate health insurance plans to include
contraceptive drugs or devices if prescription drugs are covered contain any
conscience clause provisions (usually limited to religious employers).
Existing conscience clause laws are inadequate as drafted for at least
five major reasons. First, most are very narrow in terms of the practices,
procedures or contexts in which they apply - most were drafted with abortion
and sterilization in mind and go no further. Second, many of them are very
narrow and restrictive, covering only a small group of health care
providers, not workers in the health care industry generally. Third, the
scope of protection (the discrimination forbidden) is limited. Fourth, the
remedies and procedures for vindicating the rights are undeveloped and
restricted. Fifth, most of the laws are outdated, having been written before
many of the medical developments occurred that have created some of the most
difficult moral dilemmas.
V. Hostile Interpretations
In addition to the deficiencies of drafting, there are problems of
interpretation. Judicial interpretation of these statutes has been very
grudging, even hostile. In contrast to how civil rights laws in general have
been construed during the past thirty years, conscience clauses have
received very cold, unsympathetic, unsupportive reception by state and
federal judges. Judges have given narrow, hostile interpretation regarding
procedures covered, persons covered, protections provided, and have casually
circumvented the laws by invoking other laws.
In the limited time available to me, I cannot adequately convey the
hostile tenor of most of the cases interpreting conscience clauses. Let me
just give you a few selected examples. For example, in Browhfield v.
Daniel Freeman Marina Hospital. In that case, a rape victim asked an
emergency room worker at a Catholic hospital about the availability of the
"morning after" pill. The worker declined to give any information because of
her religious beliefs. The patient brought suit against the hospital, and
the hospital raised the California conscience clause in defense. That
statute provided that "no nonprofit hospital or clinic which is organized or
operated by a religious corporation . . . or its administrative officers,
employees, agents or . . . governing board shall be liable . . . for failure
or refusal to perform or to permit the performance of an abortion in such
facility or clinic or to provide abortion services."
Thus, the case turned on whether the morning after pill produced
abortion. Finding no definition of "abortion" in the statute, the court made
no effort to discern legislative intent (specifically, regarding the morning
after pill, or generally, regarding protecting conscience rights of health
care providers), and made no effort to interpret the statute in light of the
policy underlying the statute or to achieve integrity within the structure
of the provision, or to determine as a matter of judicial notice whether the
morning after pill was understood by the medical community or the Catholic
medical community to cause abortion. Instead, citing dicta in another case
suggesting that at least one federal court did not consider the morning
after pill to be an abortifacient, the California court summarily concluded
that the hospital's refusal was not protected because the morning after pill
did not cause abortion.
While the conclusion of the court that the morning after pill does not
cause abortion in at least some cases is probably inaccurate, the method of
statutory construction is even more disturbing. The question the court had
was one for which a resort to random dicta in other cases giving unsupported
judicial ruminations in the context of interpreting entirely different
statutes enacted by a different government is not an intelligent approach to
legislative interpretation. The Brownfield case is an example of how
judges can manipulate the interpretation of a statute to reach the outcome
they prefer for personal or ideological reasons. Thus, it illustrates an
unfortunate but very real risk for those who try to rely upon the current
generation of conscience clauses.
In Spellacy v. Tri-County Hospital, Pennsylvania courts held that
a part-time admissions clerk who claimed that she was fired by the hospital
as a result of her refusal to participate in the admission procedures of
abortion patients was not protected by the state's conscience clause because
her position was one of mere "ancillary" or "clerical" assistance.
Likewise, in Erzinger v. Regents of University of California, the
California Appellate court noted: "The proscription only applies when the
applicant must participate in acts related to the actual performance of
abortions or sterilizations. Indirect or remote connection with abortions or
sterilizations are not within the terms of the statute."
The same bias is reflected in the dissenting opinion of two Montana
Supreme Court justices in Swanson v. St. John's Lutheran Hospital.
That case involved a wrongful discharge action brought by a
nurse-anesthetist who had worked at a hospital for eight years. She had
performed more than two dozen sterilizations, but after participating in one
particularly shocking and gruesome abortion, she informed her supervisor
that she would not participate in any more sterilizations. The hospital
administrator tried to change her mind, referred her to her priest, and
called the priest to ask him to counsel her to change her mind. She remained
fixed in her decision, and the next day was fired by the hospital
administrator. She brought suit under Montana's conscience clause, which
protects the rights of individuals to refuse on moral or religious grounds
to perform sterilizations, and prohibits employment discrimination based on
such refusals. After a harrowing encounter with a hostile Montana trial
court, she ultimately prevailed in the Montana Supreme Court. However, two
of the Montana Supreme Court justices would have denied her claim on the
ground, inter alia, that her reasons for refusing to participate in
any more sterilizations were emotional rather than moral. By
contrast, in a case interpreting a conscience clause that protects the right
of physicians from employment discrimination because they have
performed abortions or sterilizations, a pair of federal courts did not
require any evidence about the moral or religious basis for a
doctor's practice or sterilizations. See Watkins v. Mercy Medical
Center, 364 F. Supp. 799 (D. Ida. 1973), aff'd, 520 F.2d 894 (9th
Cir. 1975). There appears to be at least a hint of anti-Catholic,
anti-prolife bias in the way the conscience clauses have been interpreted.
See also In Re Raquena, 517 A.2d 886,891 (N.J. Super. 1986)
(lecturing Medical Center that unwillingness to participate in withdrawal of
life-support food/hydration systems was not "pro-life", and requiring the
hospital to participate in the withdrawal over its and staff's moral
objections). See further infra notes __ through __ and accompanying
text.
In Catholic Charities of Sacramento, Inc. v. Superior Court, a
Catholic charitable organization was held not to qualify for the "religious
employer" exemption from a California statute requiring employer to provide
prescription contraceptives in benefits package, and was also denied
constitutional protection from that requirement which violated basic Roman
Catholic doctrine. .
In Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for Choice, the
Alaska Supreme Court held that that state's conscience clause was
unconstitutional to the extent it applied to allow a private nonprofit
hospital that was the sole hospital in the Mat-Su valley to refuse to
provide abortions because it was a de facto quasi-public institutions.
In Larson v. Albany Medical Center, a New York state appellate
court held that employees fired in alleged retaliation for exercising rights
protected under the state conscience clause had not no private right of
action.
VI. The History of Protection of Conscience in America
The history of protection of conscience in America is directly relevant
to the protection of rights of conscience of health care providers in three
ways. First, protection for rights of conscience underlie and historically
preceded the First Amendment. In June, 1776, even before the Declaration of
Independence, the Virginia Declaration of Rights provided, inter alia,
that "all men are equally entitled to the free exercise of religion,
according to the dictates of conscience . . . ." After centuries of
government support for the state church in Virginia, the Baptists led a
petition campaign demanding that "every tax upon conscience . . . be
abolished." In 1779, Thomas Jefferson introduced his Bill for Establishing
Religious Freedom in the Virginia Legislature (House of Burgesses). It
declared that "to compel a man to furnish contributions of money for the
propagation of opinions which he disbelieves, is sinful and tyrannical." (If
Jefferson thought that about merely funding things against ones will, one
can imagine what he would say about being compelled to perform acts or
services like abortion or the MAP against one's conscience.) Jefferson's
Bill did not pass for over six years, but in December, 1785, while Jefferson
was Minister to France, James Madison engineered passage of Jefferson's
Bill. As finally enacted it declared that "no man shall be . . . molested or
burdened in his body or his good, nor shall otherwise suffer on account of
his religious opinions or belief . . . and that the same shall in no wise
diminish, enlarge or effect their civil capacity." So proud was Jefferson of
his role in securing protection for rights of conscience that he asked that
his gravestone be inscribed: "Thomas Jefferson, Author of the Declaration of
Independence, of the Statute of Virginia for Religious Freedom, and Father
of the University of Virginia."
Second, it is critical to understand that in America in the 1770s and
1780s two different views about matters of conscience and religion were
competing. One view, with a high and honorable heritage traceable to John
Locke's famous essay, A Letter Concerning Toleration, viewed
accommodation of religious variety and differences to be a matter of
utilitarian toleration or accommodation. In some of his early writing, at
least, Thomas Jefferson advocated this approach. Respect matters of
conscience and religion as simply a matter of toleration - sound
public policy, good neighborliness and good Polistes. On the other hand, the
Virginia Baptists and most famously, James Madison, spoke of matters of
conscience and religion not merely as toleration but as fundamental, natural
rights. It makes a big difference whether respect for another's moral
convictions is given simply as a matter of convenience and tolerance (to be
suspended when outweighed by other political considerations, for example, in
time of emergency), or whether that is a matter of your neighbor's basic
civil rights. Fortunately, the Founders ultimately concluded that protection
for conscience was a matter of fundamental right. Early colonial charters
and state constitutions spoke of it as a right, and during the frightening
emergency of the War of Independence, rather than suspend respect for
divergent moral views, many states granted exemptions from conscription to
persons with religious scruples against war, such as Quakers and Mennonites.
In 1775, the Continental Congress granted a general exemption from military
conscription to religious groups. The Virginia Declaration of Rights was
initially drafted too guarantee "fullest toleration" of religion; but
Madison amended it and when it passed, it protected the rights of religion:
"all men are entitled to the full and free exercise of it according to the
dictates of conscience." Madison's Memorial and Remonstrance
expressed the language of rights, not toleration ("The equal right of every
citizen to the free exercise of his Religion according to the dictates of
conscience is held by the same tenure with all our other rights." Of course,
the best example is the protection of conscience as a right is inclusion of
the right to free exercise of religion in the First Amendment of the Bill of
Rights. (James Madison, of course, was the Father of the Bill of Rights.)
Ironically, some courts and most commentators today have slipped into using
the language of toleration and accommodation. It is time for us to reassert
emphatically the language of rights.
Third, when an effort to revive the religion tax in Virginia was made
after the War of Independence, James Madison drafted his famous Memorial
and Remonstrance declaring that certain things like religious duties
"must be left to the conviction and conscience of every man; and it is the
right of every man to exercise it as these may dictate." He explained why:
Before any man can be considered as a member of Civil
Society, he must be considered as a subject of the Governor of the Universe:
And if a member of a Civil Society, who enters into any subordinate
Association, must always do it with reservation of his duty to the general
authority; much more must every man who becomes a member of any particular
Civil Society, do it with a saving of his allegiance to the Universal
Sovereign.
Madison clearly understood that if men are not loyal to themselves, to
their conscience, to their God and their moral duty as they see it, it is
utterly irrational folly to expect them to be loyal to less compelling moral
obligations of legal rules, statutes, judicial orders, or the claims of
citizenship and civic virtue, much less professional duties. If you demand
that a man betray his conscience, you have eliminated the only moral basis
for his fidelity to the rule of law, and have destroyed the foundation for
all civic virtue.
Finally, the loss of virtue that results from requiring men to violate
and disregard their conscience undermines the basis for self-government. The
founders of the American Constitution really believed that virtue in the
citizenry was absolutely essential, indispensable for this system of
government to function and survive. I have brought just a few quotes from
the Founders to make this point.
Thomas Jefferson: "[O]ur rules can have authority over such natural
rights only as we have submitted to them. The rights of conscience we never
submitted, we could not submit. We are answerable for them to our God."
George Washington: "Tis substantially true, that virtue or morality is a
necessary spring of popular government. -- The rule indeed extends with more
or less force to every species of Free Government.-- Who then is a sincere
friend to it, can look with indifference upon attempts to shake the
foundation of the fabric? --. . . ."
Samuel Adams agreed that "neither the wisest constitution nor the wisest
laws will secure the liberty and happiness of a people whose manners are
universally corrupt."
James Madison told delegates to Virginia's ratifying convention: "To
suppose that any form of government will secure liberty or happiness without
any virtue in the people, is a chimerical idea." He also wrote in Federalist
No. 57: "The aim of every political Constitution is or ought to be first to
obtain for rules men who possess most wisdom to discern, and most virtue to
pursue, the common good of society; and in the next place, to take the most
effectual precautions for keeping them virtuous whilst they continue to hold
their public trust."
John Adams clearly warned: "Out constitution was made only for a moral
and religious people. It is wholly inadequate to the government of any
other." He also said: "Liberty can no more exist without virtue and
independence than the body can live and move without a soul."
Thus, protection of conscience has been crucial to the foundation of this
nation.
VII. Conclusion
This Energy and Commerce Committee has recently be involved in hearing
testimony about enormous scandals caused because businessmen and accountants
and other professional have anesthetized their consciences in the pursuit of
wealth. The consequences have been seedy, shady, and disastrous for the
companies and for the economy of the country.
In this context, it is more than a little ironic to hear abortion zealots
plead that Congress must look the other way while they continue to coerce
health care professionals and entities to ignore their consciences. The
results of not protecting and encouraging the exercise of conscience in the
health care profession will be just as disastrous as it has been for Enron
and Worldcom and perhaps for Martha Stewart.
Currently pending in Congress is the Abortion Non-Discrimination Act. It
is a very small, but very important step in the right direction. It simply
protects conscience by requiring modest accommodation for entities that
cover and pay for and provide medical services. It merely prohibits use of
state power to coerce abandonment of conscience and moral principles. It is
a true neutrality provision, guaranteeing each health care participant the
right to choose for himself or herself or itself to follow the values and
moral precepts they espouse.
I urge this Committee to act promptly to enact the Abortion
Non-Discrimination Act and other acts which will address the crisis of
conscience and begin to eliminate the intolerance, coercion and
discrimination against health care participants who do not believe in
participating in the provision of abortion and other morally controversial
procedures.
Attachment to Statement of Lynn D. Wardle
Summary of State Laws Protecting Rights of Conscience
July 8, 2002
Alabama
Code of Ala. § 22-8A-8 (2001) No nurse, physician or healthcare provider
is required to withdraw life-sustaining treatment. Health care provider will
attempt to transfer patient to other provider.
Alaska
Alaska Stat. § 18.16.010 (b) "Nothing in this section requires a hospital
or person to participate in an abortion, nor is a hospital or person liable
for refusing to participate in an abortion under this section."
Arizona
A.R.S. § 36-2151 Hospital, physician or other medical personnel may
refuse to perform an abortion for moral or religious reasons.
Arkansas
A.C.A. § 20-16-304, 601 (2001) No person or hospital has to participate
in an abortion. Medical personnel may refuse to give contraceptives or
information about such things if it is against their religious beliefs.
California
Cal. Health & Safety Code 123420 A physician, nurse or other hospital
employee may refuse to participate in an abortion for moral or religious
reasons. Admission to a school may not be denied due to applicant's
unwillingness to participate in an abortion. Non-profit facility or
religious hospitals do not have to perform abortions.
Colorado
C.R.S. 18-6-104 (2001) Hospital does not have to admit a person for the
purpose of performing an abortion. A person who is an employee at a hospital
does not have to perform an abortion if it is against his morals or
religious principles.
C.R.S. 25-6-102, 207 (2001) No private institution or physician is
required to give out contraceptive. A county or city employee may refuse the
duty to supply contraceptives.
Connecticut
Conn. Gen. Stat. § 19a-580a (2001) Any physician who does not wish to
comply with a living will must transfer the patient.
Delaware
24 Del. Code Ann. 1791 No person is required to participate in an
abortion. No hospital has to participate.
Florida
Fla. Stat. § 390.0111 (2001) Hospital and person do not have to
participate in abortion if it against moral or religious principles.
Fla. Stat. § 381.0051 (2001) Physician or other person may refuse to give
contraceptives for medical or religious purposes.
Georgia
O.C.G.A. § 16-12-142 (2001) No person or hospital shall be required to
perform an abortion when it is against his moral or religious principles.
O.C.G.A. § 49-7-6 (2001) Any employee can refuse to provide family
planning services if it is contrary to his religious beliefs
Hawaii
H.R.S. § 453-16 Nothing in this section shall require any hospital or any
person to participate in such abortion nor shall any hospital or any person
be liable for such refusal.
Idaho
Idaho Code § 18-612 (2002) No hospital or person shall be required to
perform an abortion if it is objected to for moral reasons.
Illinois
745 ILCS 70 - Rights of Conscience are protected for all procedures. Sec.
11.2 - Health Care Payers are not liable. Sec. 12 - Right to recover treble
damages, may not be less than $2,500.
Indiana
Ind. Stat. 16-34-1-3 to 5. No hospital shall be required to perform an
abortion. No person shall have to do so if it against his moral or religious
principles and one cannot be required to participate in an abortion as a
condition of training or employment.
Iowa
Iowa Code § 146.1&2 (2002) No person shall be required to perform an
abortion if it against his moral or religious convictions. No hospital that
is not maintained by public authority must perform an abortion.
Kansas
K.S.A. § 65-443, 444 (2001) No person or hospital is required to perform
an abortion. Refusal to do so is not grounds for civil liability against any
person.
Kentucky
KRS § 311.800 (2001) No public funds shall be used to perform an
abortion. No private hospital or person shall be required to perform an
abortion.
Louisiana
La. R.S. 40:1299.31 to .32 (2002) No person in the medical field can be
liable for refusing to participate in abortion. No social service worker is
liable for refusing to recommend abortions. No hospital shall be required to
perform an abortion.
Maine
22 M.R.S. § 1591-2 (2001) no person or hospital is required to perform an
abortion. No hospital, firm, or education institution can discriminate for a
person's refusal to perform an abortion.
22 M.R.S. § 1903 (2001) A private institution or physician or their agent
may refuse to provide family planning services if it is against their
religious or moral beliefs.
Maryland
Md. Health-General Code Ann. § 20-214 No person or hospital has to
participate in an abortion, artificial insemination, or sterilization. There
is no immunity if a person's referring the patient to a source of pregnancy
termination would have prevented death or long lasting injury.
Massachusetts
Mass. Ann. Laws ch. 112, § 12I (2002) Any person who objects to abortion
or sterilization will not be required to participate. Such an objection will
not be used against a person to keep him out of medical school, social work,
etc.
Michigan
MCLS § 333.20181, 20182 (2002) No hospital, teaching institution or
person connected with such a facility is required to perform an abortion if
objected to on professional, moral, or religious grounds.
Minnesota
Minn. Stat. Ann. 145.414, 145.42 No hospital or person is liable if they
refuse to participate in an abortion. No health Plan company will be held
liable for not providing abortions.
Mississippi
Miss. Code Ann. § 41-41-215 "A health-care provider may decline to comply
with an individual instruction or health-care decision for reasons of
conscience."
Missouri
§ 197.032 R.S.Mo.No person or public or private hospital shall be
required to treat a person for abortion.
§ 188.110 R.S. Mo. (2001) No employer can discriminate against employees
for their refusal to participate in an abortion.
§ 188.110 R.S.Mo. (2001) No school can deny admittance for a person's
refusal to participate in an abortion
Montana
Mont. Code Anno., § 50-20-111 (2001) No private hospital need provide
abortion. All persons have the right to refuse or participate in an
abortion. Person can mean individual or corporations.
Mont. Code Anno. § 50-5-502 to 505 No hospital or medical facility or
persons shall have to perform sterilization. Person has the right to
injunctive relief or monetary damages. Hospital or medical facility shall
not loose any privileges or immunities.
Nebraska
Neb. Rev. Stat. ' 28-337 No hospital in the state, public or private,
must perform an abortion, but it must inform the patient of this policy.
Nevada
Nev. Rev. Stat. 632.475 - Nurse or somebody providing direct assistance
to a patient does not have to assist in an abortion if it is against her
morals
New Hampshire
RSA 137-H:6 (2002) A physician who, for conscience sake, cannot comply
with a living will shall without delay transfer the patient to another
physician.
New Jersey
N.J. Stat. § 2A:65A-1 "No person shall be required to perform or assist
in the performance of an abortion or sterilization."
N.J. Stat. § 2A:65A-2 "No hospital or other health care facility shall be
required to provide abortion or sterilization services or procedures.
N.J. Stat. § 2A:65A-2 No civil liability for those who refuse to perform
abortion or sterilization.
New Mexico
N.M. Stat. Ann. § 30-5-2 (2001) No person or hospital has to participate
in abortion for moral or religious reasons
N.M. Stat. Ann. § 24-8-6 (2001) No hospital is required to admit a
patient for sterilization if done so on religious grounds.
New York
NY CLS Civ R § 79-i (2002) No person shall be required to perform an
abortion if it is against his conscience or religious beliefs.
North Carolina
N.C. Gen. Stat. § 14-45.1 Physician or nurse do not have to perform
abortion if it is against their religious principles. A hospital or
healthcare institution does not have to offer abortions.
North Dakota
N.D. Cent. Code, § 23-16-14 (2002) No hospital or person shall be
required to perform an abortion.
N.D. Cent Code 14-02.4-15.1 (1997) Government may not discriminate
against health care institute or private agency for refusal to participate
in any health care service that is against written religious and moral
policies.
Ohio
ORC Ann. 4731.91 (Anderson 2002) No public or private hospital or person
has to participate in an abortion.
Oklahoma
63 Okl. St. § 1-741 No Private hospital or person has to participate in
an abortion.
Oregon
Or. Rev. Stat. ' 435.485 (2001) No physician must give advice to a
patient concerning abortion, but he must advise the patient. No hospital
employee is required to participate in an abortion.
Or. Rev. Stat. § 435.225 (2001) "Any employee of the Department of Human
Services may refuse to accept the duty of offering family planning and birth
control services" if it conflicts with religious principles.
Pennsylvania
18 Pa. C. S. §3202 (2002) Right of Conscience is protected for all person
who desires to not provide an abortion.
18 Pa. C.S. § 3213. Except for a facility devoted to abortions, no
facility is required to perform abortions, and no medical personnel,
employee or student is required to participate in an abortion. Civil
Liability may reach $5,000.
43 P.S. § 955.2 (2002) No hospital or person is required to perform an
abortion or sterilization. No school can deny admission due to a person's
refusal to participate in abortion or sterilization.
Rhode Island
R.I. Gen. Laws § 23-17-11 (2001) No person shall be required to
participate in an abortion or sterilization if such are objected to on moral
or religious grounds.
South Carolina
S.C. Code Ann. § 44-41-40 (2001) No private institution is required to
perform an abortion.
South Dakota
S.D. Codified Laws § 34-23A-12 (2001) No person who refuses to perform an
abortion shall be held liable.
Tennessee
Tenn. Code Ann. § 39-15-204, 205 (2001) No hospital or person need
provide an abortion.
Tenn. Code Ann. § 68-34-104 No private institution or physician is
required to provide contraceptive procedures or supplies if refusal is based
on conscientious or religious objections.
Texas
Tex. Occ. Code § 103.001, 002 (2002) No physician, nurse or employee of a
hospital maybe required to participate in an abortion.
Tex. Occ. Code § 103.003 (2002) A person whose rights are violated may
sue the hospital, medical facility or educational institution for an
injunction plus affirmative relief, including reinstatement, backpay plus
10%
Tex. Occ. Code § 103.004 Hospital need not provide abortions.
Tex. Ins. Code Ann. art. 20A.09(m) - No, HMO, physician, or provider is
required to recommend or provide services that violate religious
convictions.
Utah
Utah Code Ann. § 76-7-306 (2001) No person shall be required to perform
an abortion if it is against his moral or religious beliefs. No private or
denominational hospital shall be required to perform abortions.
Virginia
Va. St. § 18.2-75 A hospital, medical facility or physician do not have
to perform abortion.
Washington
Wash. Rev. Code Ann. 70.47.160 (2002) No HMO need provide or pay for
services that are religiously objectionable.
Wash. Rev. Code Ann. § 70.122.060 (2002) . No nurse, physician, or other
health care practitioner may be required by law or contract in any
circumstances to participate in the withholding or withdrawal of
life-sustaining treatment if such person objects to so doing
West Virginia
W. Va. Code § 16-2F-7 (2001) - No person need participate in and abortion
if they refuse for medical reasons or any others.
W. Va. Code § 16-2B-4 (2001) Any employee of the state may refuse the
duty of providing family planning services.
W. Va. Code § 16-30-12 A health care facility does not need to change it
policies that are grounded in sincerely held religious convictions or moral
principles. . . .A health care provider need not provide service that is
contrary to its religious beliefs. (Living Wills etc.)
Wisconsin
Wis. Stat. § 253.09 (2001) No hospital or person is required to
participate in abortion or sterilization.
Wyoming
Wyo. Stat. § 35-6-105, 106 (2001) No private hospital or institution or
person need provide or participate in abortions. (Also mentions Euthanasia,
but appears to be in context of abortion.)
Wyo. Stat. § 42-5-101 (2001) Any person may refuse the duty of providing
family planning or birth control services if done so for religious or
personal beliefs.