Re: Abortion Non-Discrimination Act
The Need for Comprehensive Anti-Discrimination Protection for Health
Care Organizations that Choose Not to Provide Abortions
United States Conference of Catholic Bishops
September, 2003)
Reproduced with permission
Recent attempts to force health care organizations to provide, refer or pay
for abortions demonstrate the need to strengthen federal protections against
discrimination based on objections to abortion.
Current Law
Currently, federal law provides limited statutory protection for individuals
and providers who choose not to perform or refer for abortion.
Abortion-related Discrimination in Governmental Activities Regarding
Training and Licensing of Physicians, 42 U.S.C. § 238n. In 1996, Congress
reacted to a dispute involving the accreditation of physician training
programs by prohibiting discrimination against health care entities on the
basis that they refuse to provide training in, perform, or refer for
abortions.
Recent Threats
Optima Health, Inc. New Hampshire
In 1994, Elliot Hospital and the Catholic Medical Center formed Optima
Health, Inc. After abortion advocacy groups learned that the Elliot location
would no longer perform elective abortions, they approached the New
Hampshire attorney general to challenge the merger. In 1998, the New
Hampshire attorney general issued an opinion challenging the merger by
applying the law of charitable trusts and concluding on several grounds that
the merger must be reviewed in Probate Court. (See New Hampshire Attorney
General's Report on Optima Health, March 10, 1998,
www.state.nh.us/nhdoj/CHARITABLE/optima1.html accessed 09/09/03). After the
opinion was issued, the hospitals dissolved the merger.
Pro-abortion groups followed up by developing a strategy to "use
charitable assets laws to protect reproductive health services by
emphasizing to hospital officials, the media, and the states attorney
general that the hospital has violated or is about to violate its mission to
provide vital community services" (Hospital Mergers and the Threat to
Women's Reproductive Health Services: Using Charitable Assets Laws to Fight
Back, National Women's Law Center, 2001).
Valley Hospital Ass'n. v. Mat-Su Coalition for Choice, 948 P.2d 963
(Alaska 1997)
On November 21, 1997, the Alaska Supreme Court held that a private
non-sectarian hospital was required to provide abortion. The court reasoned
that Alaska law protects abortion as a fundamental right; factors such as,
the state's granting of a certificate of need to the hospital, and the
receipt of federal and state funds for construction and operation of the
hospital, transform the hospital into a "quasi-public" actor, which must
provide abortions. The hospital stated that its policy against abortion was
based on the sincere moral conscience of the hospital's operating board and
asserted that it was protected by the Alaska conscience law. The Alaska
Supreme Court struck down the conscience law as applied to this hospital,
holding that there is no compelling state interest in the conscience rights
of the hospital. In April 1998, a proposed state constitutional amendment to
reverse the court's decision fell one vote short of the two-thirds majority
needed for approval by the legislature. Incredibly, the court's mandate
results in part from the hospital's receipt of federal funds, even though
federal funds themselves are generally barred from being used for abortions.
Several other state constitutions have been construed to protect abortion
to a greater extent than the federal courts. Hospitals in these states are
at risk of having a state court mandate the provision of abortion even by
hospitals with moral objections.
Fidelis Health Care New York.
In 1997, after Catholic dioceses in New York created Fidelis Care, a
managed care health plan, Family Planning Advocates of New York (FPA) began
pressuring the state health department to force the Catholic health plan to
provide abortion counseling and referrals. FPA said that "Fidelis' ability
to serve women of childbearing age is severely compromised by its refusal to
cover...abortions" and called upon the State Health Department to "increase
its monitoring of Fidelis' informational and referral processes concerning
reproductive health care" (Religious Hospital Mergers and HMOs: The
Hidden Crisis for Reproductive Health Care, MergerWatch, pages 24-26;
available at www.mergerwatch.org/publications).
Subsequently, the state comptroller recommended that Fidelis no longer be
assigned state health contracts for women of childbearing age.
In 2003, two bills were introduced in the New York State Legislature to
allow the state health commissioner in licensing decisions to discriminate
against hospitals that do not participate in abortions. (A. 4945 and S.
4031). A third bill would mandate abortion coverage in all health plans that
provide maternity coverage (A. 2611). These remain active for the 2004
legislative session.
Conclusion
Strengthening and clarifying existing law to protect health care
organizations from abortion-related discrimination is urgently needed. Two
simple changes in current law would protect all health care organizations
from discrimination. The Abortion Non-Discrimination Act (S. 1397),
introduced by Senator Judd Gregg, would accomplish both these changes.
Clarifying Existing Law
Already, the plain language of 42 U.S.C. § 238n
protects a broad range of health care providers. The statute says, "the term
'health care entity' includes an individual physician, a postgraduate
physician training program, and a participant in a program of training in
the health professions." 42 U.S.C. § 238n(c)(2). As Senators Coats, Gregg,
Frist, Dewine, McConnell and Hutchinson have said, "by the word 'includes'
congress intended to add to, not subtract, from, the range of entities
generally seen as health care entities." (Senate Report, 105-220, page 65,
June 23, 1998). In light of the pressures placed on health care providers by
decisions like Valley Hospital, existing law should be explicitly
clarified to state that "health care entity" also includes a hospital, a
health professional, a provider sponsored organization, a health maintenance
organization, a health insurance plan or any other kind of health care
facility, organization or plan. The section heading should be modified to
read, "abortion-related discrimination in governmental activities regarding
training, licensing and practice of physicians and other health
care entities," to reflect the newly clarified scope of the statute.
Strengthening Existing Law
Existing law protects health care entities from discrimination based on
three kinds of participation in abortion: performing, training and
referring. The law should be strengthened to include providing coverage of,
or paying for, abortion. This change is urgently needed to protect health
care plans, like Fidelis, that have adopted a policy against abortion.