HHS Protection of Conscience Regulation (2008-2011)
U.S. Department of Health and Human Services
Ensuring That Department of Health and Human Services Funds Do Not
Support Coercive or Discriminatory Policies or Practices in Violation of
Federal Law
Comment by HHS on Final Rule (2008)
Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008
/ Rules and Regulations:
Part VI,
78072-78101.
1. 42 U.S.C. 300a-7(b)(1) provides that the ''[t]he
receipt of any grant, contract, loan, or loan guarantee under [certain
statutes implemented by HHS] * * * by any individual * * * does not
authorize any court or any public official or other public authority to
require'' the individual to perform or assist in a sterilization procedure
or an abortion if it would be contrary to his/her religious beliefs or moral
convictions.
2. 42 U.S.C. 300a-7(d) provides that ''[n]o individual
shall be required to perform or assist in the performance of any part of a
health service program or research activity funded in whole or in part under
a program administered by [HHS]'' if doing so ''would be contrary to his
religious beliefs or moral convictions.''
3. See, e.g., AMA House of Delegates Policy H- 5.995
(issued 1973; reaffirmed 1986, 1996, 1997, and 2000).
4. 4 ''If [a] hospital's refusal to perform
sterilization [or, by implication, abortion] infringes upon any
constitutionally cognizable right to privacy, such infringement is
outweighed by the need to protect the freedom of religion of denominational
hospitals' with religious or moral scruples against sterilizations and
abortions.' '' Taylor v. St.Vincent's Hospital, 523 F.2d 75, 77 (9th Cir.
1975)(citations omitted).
5. See, e.g., S.D. Codified Laws § 36-11-70
(2003);Miss. Code Ann. § 41-107-5 (2004).
6. Section 300a-7(c)(1) provides that ''[n]o entity
which receives a grant, contract, loan, or loan guarantee under the [Act] *
* * may (A) discriminate in the employment, promotion, or termination of
employment of any physician or other health care personnel, or (B) * * * in
the extension of staff or other privileges to any physician or other health
care personnel * * *because he refused to perform or assist in the
performance of * * * [an] abortion'' on the grounds that doing so ''would be
contrary to his religious beliefs or moral convictions.''
42 U.S.C. 300a-7(c)(1). Section 300a-7(c)(2) provides that ''[n]oentity
which receives * * * a grant or contract for biomedical or behavioral
research under any program administered by [HHS]'' may discriminate in the
employment of or the extension of staff privileges to any health care
professional ''becausehe refused to perform or assist in the performance
of'' ''any lawful health service'' based on religious belief or moral
conviction.
42 U.S.C. 300a-7(c)(2).Section 300a-7(d) provides that ''[n]o individual
[may] be required to perform or assist in the performance of any part of a
health service program* * * funded in whole or in part under a program
administered by the Secretary of Health and Human Services'' if doing so
''would be contrary to his religious beliefs or moral convictions.''
42 U.S.C.300a-7(d). Section 300a-7(e) prohibits any entity that receives
funding under the PHS Act from denying admission to, or otherwise
discriminating against, ''any applicant (including for internships and
residencies) for training or study because of the applicant's reluctance * *
* to counsel, suggest, recommend, assist, or in any way participate in the
performance of abortions * * * contrary to or consistent with the
applicant's religious beliefs or moral convictions.''
42 U.S.C. 300a-7(e). In addition, section 300a-7(b) provides in part that
''[t]he receipt of any grant, contract, loan, or loan guarantee under the
[PHS Act] * * * by any individual or entity does not authorize any court or
any public official or other public authority to require'' (1) the
individual to perform or assist in an abortion if it would be contrary to
his/her religious beliefs or moral convictions; or (2) the entity to make
its facilities available for abortions, if the performance of abortions in
the facilities is prohibited by the entity on the basis of religious beliefs
or moral convictions, or provide personnel for the performance of abortions
if it would be contrary to the religious beliefs or moral convictions of
such personnel. 42 U.S.C. 300a-7(b).
7. Table I and footnotes 7 to 18 are not reproduced here.
See Federal
Register / Vol. 73, No. 245 / Friday, December 19, 2008, 78094