Re: Abortion Non-Discrimination Act
The Need to Strengthen Federal Abortion Non-Discrimination Law
United States Conference of Catholic Bishops
September, 2003
Reproduced with permission
Recent cases of pressure on health care providers to
participate in abortion demonstrate the need to
strengthen federal protection against
abortion-related discrimination.
#Alaska
On November 21, 1997, the Alaska Supreme Court
ordered a private non-sectarian hospital with a
policy against abortion to begin performing
abortions. The court said Alaska law protects
abortion as a fundamental right; factors such as the
hospital's receipt of a certificate of need, and its
receipt of federal and state funds for construction
and operation, transform the hospital into a
"quasi-public" actor which must provide abortions.
#California
During the 1999 legislative session, a bill (AB 525)
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. Those provisions
of the bill were struck by amendment; the final bill
enacted into law requires all health plans to
provide written notice that they may or may not
cover abortion and urges enrollees to call the
health plan to find out. Failure to provide such
notice is a crime.
In 2003, Governor Gray Davis
signed into law a bill (SB 932) that prohibits the
attorney general from approving the sale of health
care facilities if the seller restricts the kinds of
services that may be offered at the facility. This
law will effectively prohibit hospitals from
ensuring that the property they sell is not used for
abortions.
#Connecticut
After abortion advocates learned that an outpatient
surgical center proposed by four hospitals would not
perform abortions and sterilizations, they formed a
coalition to defeat the proposed center and
intervened in Certificate of Need proceedings. In
September of 1997, the Connecticut Office of Health
Care Access refused to issue a certificate allowing
the center to open.
# Florida
In 1997, Bayfront Medical Center, a private
non-sectarian hospital, joined a non-profit
consortium of hospitals that followed a pro-life
ethical policy. After the City of St. Petersburg,
which leased land to Bayfront, learned that Bayfront
would follow the policy and cease performing
abortions, it filed a federal lawsuit against
Bayfront and the consortium. The city claimed a
clause in the lease providing, that "Bayfront will
operate the premises without regard to...creed," had
been violated and that Bayfront's agreement to
follow the pro-life policy amounted to an
establishment of religion. Under the pressure of the
lawsuit and mounting legal fees, Bayfront decided to
settle the suit by leaving the consortium.
#New Hampshire
In 1998, after "reproductive rights" groups learned
that a newly merged hospital would no longer perform
elective abortions and sterilizations, they
approached the New Hampshire attorney general to
challenge the merger. The attorney general issued an
opinion concluding on several grounds that the
merger is subject to the law of charitable trust and
must be reviewed in probate court. Under pressure
from the attorney general, the merger dissolved.
#New Jersey
Elizabeth General Medical Center (EGMC) agreed to
consolidate with St. Elizabeth's Hospital and no
longer perform abortions. Subsequently, on October
21, 1999, a New Jersey Superior Court judge
reviewing the consolidation issued a final judgment
that (1) allowed pro-abortion groups to intervene in
the consolidation proceedings, (2) found that the
proposed consolidation would constitute a change in
EGMC's charitable mission, and (3) approved a
settlement agreement to place $2 million in trust
for sterilizations, abortions and abortion
referrals.
In 1998, Lourdes Health System purchased the
bankrupt Rancocas Hospital. After the Rancocas
facility ceased performing abortions and
sterilizations, the ACLU of New Jersey attempted to
intervene in the transaction and compel Lourdes to
build an abortion and sterilization clinic. A New
Jersey Superior Court Judge disagreed with the ACLU,
disallowing its effort to intervene in the
transaction.
#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." 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.