Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

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.

 

Notes

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