Summary
S. 1397, the Abortion Non-Discrimination Act (ANDA), protects the full
range of health care organizations and individual health care providers from
governmental discrimination for declining involvement in abortion.
Background
The bill amends an existing federal abortion non-discrimination
protection. That protection was enacted-by strong bipartisan majorities-in
response to a threat that the Accreditation Council for Graduate Medical
Education (ACGME) would require abortion training in all teaching hospitals
with obstetrics/gynecology residency programs. The law, 42 U.S.C. § 238n,
prohibits the federal government, and any state or local government that
receives federal financial assistance, from discriminating against health
care entities that decline to perform, refer for, train in, or make
arrangements for abortions. To make it clear that residents and residency
programs are specifically protected, the law states that "'health care
entity' includes an individual physician, a postgraduate physician training
program, and a participant in a program of training in the health
professions."
Current Threats
Unfortunately, the language of the law needs to be clarified to
counteract a nationwide campaign to require all health care providers to
participate in abortion. Already, that campaign has met with some success.
Novel legal and administrative strategies have resulted in:
- Forcing a private community hospital to open its doors for late abortions1,
- Denying a certificate of need to
an outpatient surgical center that declined involvement in abortion after an
abortion rights coalition intervened in the proceedings2,
- Forcing
a private non-sectarian hospital to leave a cost-saving consortium because
the consortium abided by a pro-life policy in its member hospitals3,
- Dismantling a hospital merger
after abortion advocates approached a state attorney general to challenge
the merger4,
- Pressuring a
hospital to place $2 million in trust for abortions and sterilizations
before allowing the hospital to consolidate5,
- Attempting
to require a Catholic hospital to build an abortion clinic and pay for abortions6
- Threatening a
Catholic-operated HMO with loss of state contracts because it declines to
provide abortions7,
- Prohibiting
hospitals from ensuring that the property they sell is not used for abortions8,
Clarifying Existing Law
Already, the plain language of 42 U.S.C. § 238n protects a broad range of
health care providers. The definition of "health care entity" includes
residency programs and residents. It does not exclude any health care
entities. The definition is illustrative, not exhaustive. But in light of
the recent campaign to force providers to participate in abortions, existing
law should be clarified to state that "health care entity" includes the full
range of health care entities: all hospitals, health professionals, provider
sponsored organizations, heath maintenance organizations, health insurance
plans, and all other kinds of health care facilities, organizations or
plans. Additionally, the section heading should be modified, reflecting this
clarification, to read: "Abortion-related Discrimination in Governmental
Activities Regarding Training, Licensing and Practice of Physicians and
other Health Care Entities."
Strengthening Existing Law
Existing law protects health care entities from discrimination based on
their declining to participate in abortion in three ways: performing,
training, and referring. The law should be strengthened to include other
kinds of participation: providing coverage of and paying for abortions.
Conclusion
S. 1397 both clarifies and strengthens existing law. Its passage is
urgently needed to protect health care providers with policies against
performing abortions.
Notes
1. See Valley Hospital Ass'n. v. Mat-Su Coalition
for Choice, 948 P.2d 963 (Alaska 1997).
2. See State of Connecticut Office of Health Care
Access Final Decision in Roy Bebe, M.D., Hartford Hospital, John Dempsey
Hospital, New Britain General Hospital, Saint Francis Hospital and Medical
Center and ASC Network Corporation d/b/a Avon Surgery Center for a
Certificate of Need, Docket No. 96-547 (Sep. 29, 1997).
3. See "City, Bayfront Settle Suit," Wes Allison,
St. Petersburg Times, Apr 11, 2001, pg. 1.A.
4. SeeNew
Hampshire Attorney General's Report on Optima Health, March 10, 1998.
5. See "Merger Pits Care and Doctrine," Steve
Chambers, The Star Ledger, May 16, 1999, page 1.
6. See In the Matter of: Allegheny Hospitals, New
Jersey and Zurbrugg Health Foundation, Superior Court of New New Jersey,
Civil Division, Burlington County, Docket No. BUR-L-3541-98, Hearing
Transcript, Oct. 24, 2002.
7. See "N.Y. Insurance Denies Access to
Reproductive Healthcare," Womensenews, Jan. 31, 2002 at
womensenews.org/article.cfm/dyn/aid/801 (accessed 09/09/03).
8. See S.B. 932, 2003-2004 Leg. Sess. (Ca. 2003).