The Health Care Providers' Rights of Conscience Act
			Written Testimony of the Secretariat for Pro-Life Activities, United 
	States Conference of Catholic Bishops
			Submitted to the Committee on Federal and State Affairs
			Kansas House of Representatives
			February 20, 2002 
                    
				
				
    
	
	
	
	United States Conference of Catholic Bishops
	Thank you for providing us this opportunity to submit written testimony 
	on the Health Care Providers' Rights of Conscience Act (HB 
	2711). The United States Conference of Catholic Bishops is a 
	nonprofit corporation organized under the laws of the District of Columbia, 
	whose members are the active Catholic Bishops in the United States. The 
	Conference advocates and promotes the pastoral teaching of the Bishops on 
	diverse issues, including access to health care, concern for the poor and 
	vulnerable, the protection of human rights (including religious freedom and 
	rights of conscience) and the sanctity and dignity of human life. As a 
	national conference we do not take formal positions on state legislation, 
	but we lend advice and assistance to local Bishops and state Catholic 
	conferences at their request. We have been asked by the Kansas Catholic 
	Conference to provide some background on the right of conscience on the 
	federal and state levels and to discuss growing threats to this fundamental 
	right.
	The Well-Established Legal Tradition on Rights of Conscience
	The basic principle that no one ought to be forced to act in violation of 
	his or her conscience is recognized and protected by a vast body of laws. In 
	federal law, this principle is recognized in a number of provisions that 
	protect conscientious objection to a range of procedures, including
	abortion,1sterilization,2
	contraception3 and
	executions.4This 
	principle is also recognized in the vast majority of states. After the 
	Supreme Court handed down its Roe v. Wade decision in 1973, prompting 
	Congress to pass its first legislation protecting the right to refuse to 
	provide abortions, many states passed similar laws. Today Kansas and almost 
	all other states provide some protection for the right of conscientious 
	objection to involvement in abortion. Some states also protect providers who 
	object to other kinds of procedures, including euthanasia, sterilization, 
	artificial insemination, abortifacient drugs and contraception. The State of 
	Illinois has adopted a comprehensive right of conscience law, under which 
	the protection of physicians and other health care personnel extends to any 
	procedure "which is contrary to the conscience of such physician or health 
	care personnel." The State of Washington provides comprehensive conscience 
	protection to individual health care providers and to religiously affiliated 
	health care plans and facilities.
	Inadequacies in Current Legal Protection
	While the principle of protection for conscience rights is widely 
	acknowledged, its implementation has been far from perfect, creating a need 
	for more comprehensive and forward-looking legislation.
	Most federal conscience protections apply only to specific federal 
	programs or are tied to the receipt of federal funds.5 
	Their scope is limited by this fact, and by the narrow range of procedures 
	covered.
	Though the majority of states acknowledge and protects rights of 
	conscience, their laws suffer from similar inadequacies. Most of these laws 
	are limited to abortion. Only a few states protect health care providers 
	from being forced to perform sterilizations. Few existing laws protect the 
	full range of individuals and institutions that may be involved in providing 
	health care in our increasingly complex health care system. Many states do 
	not protect the rights of conscience with respect to newly created 
	technologies such as cloning or embryonic research, or even current misuses 
	of older technology such as "surrogate" motherhood. States have also not 
	addressed the need to protect providers with respect to new threats to human 
	life at the end of life, such as physician-assisted suicide and euthanasia. 
	As noted by one commentator: "As the range of medical technologies continues 
	to expand..., the number of medical services involving potentially serious 
	conflicts of conscience is certain to increase."6
	Finally, with new organized threats to conscience on the horizon, it is 
	especially important for states to expand and strengthen their existing 
	protections now. These threats have become especially apparent in recent 
	years in the fields of abortion and contraception, as reviewed below.
	Attempts to Force Health Care Providers to Perform Abortions and Other 
	"Reproductive" Services
	Existing conscience laws are under increasing attack by abortion rights 
	activists, who want to require all health care personnel and hospitals to 
	provide "the full range of reproductive services," including abortion. Not 
	two years ago, there was a bold and unsuccessful attempt at a meeting of the 
	American Medical Association's House of Delegates to win AMA endorsement for 
	legislation requiring all hospitals to provide a "full range of reproductive
	services."7 Fortunately 
	the delegates ultimately defeated this misguided proposal, instead 
	reaffirming AMA policy supporting conscience which states that "neither 
	physician, hospital, nor hospital personnel shall be required to perform any 
	act violative of personally held moral principles."8
	There have been other attempts to force hospitals to provide abortions 
	and other morally controversial services. In 1997, for example, the Alaska 
	Supreme Court ordered a private non-sectarian hospital that had a policy 
	against abortion to begin performing 
	abortions.9 And in 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 New Hampshire 
	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 the pressure of the attorney general, the merger 
	dissolved. Subsequently, abortion rights groups made this case a model for 
	one of their strategies to prevent mergers if such procedures will not be 
	performed or to force newly merged hospitals to perform 
	them.10 The American Civil Liberties Union 
	(ironically named in this context) recently has published a report and 
	advocacy kit aimed at requiring all hospitals, including Catholic hospitals, 
	to perform abortions and other procedures which violate their conscientious
	convictions.11
	Contraceptive Mandates and "Emergency Contraception"
	Attacks on conscience have not always been as overt as these. A large 
	part of the campaign to undo conscience rights in the abortion context has 
	proceeded subtly and incrementally and has trampled on other conscience 
	rights along the way. For example, to gain momentum for their campaign, 
	abortion rights activists have begun to erode the right of conscience as it 
	relates to paying for and providing contraception. Seventeen states now have 
	adopted, and two more-Massachusetts and New York-are actively considering, 
	mandates that require employers to provide insurance coverage for 
	contraceptives if they provide coverage for other prescription drugs.
	Advocacy to mandate contraceptive coverage is noteworthy for a number of 
	reasons, not the least of which is the fact that in all but one state, these 
	mandates extend to so-called "emergency contraception." "Contraception" is a 
	misnomer in this case, because this regimen commonly operates not to prevent 
	conception but rather to ensure the death of an embryo after 
	conception by interfering with implantation in the womb.12 
	It is thought that "this mode of action could explain the majority of cases 
	where pregnancies are prevented by the morning after pill."13 
	These efforts to mandate "contraceptive" drug coverage are therefore 
	attempts to obscure or destroy the line between abortion and contraception, 
	and to universalize coverage of abortifacient drugs at the expense of 
	conscience rights. Virtually all the mandates enacted thus far provide 
	either no conscience protection or inadequate protection. Only one mandate 
	safeguards religious and moral beliefs. A dozen of the mandates contain 
	provisions protecting religious employers, but half of these define 
	"religious employer" so restrictively that the vast majority of religious 
	organizations are not covered. In some cases, the statutory language ignores 
	the religious character of organizations such as Catholic Charities and 
	Catholic grade schools, treating them instead as "secular" institutions with 
	no conscience rights whatever.
	National groups advancing this campaign have had a federal contraceptive 
	mandate introduced in Congress as well. That bill not only fails to provide 
	any conscience protection (contradicting many federal laws that protect 
	religious beliefs and moral convictions), but would even override all 
	existing conscience protections in state contraceptive mandates, inadequate 
	though many of these already are.14 
	This bill, too, would cover abortifacient "emergency contraception." The 
	movement to impose contraceptive coverage is really a movement to mainstream 
	abortion as a medical norm and chip away at the right of conscience.
	Mandating "Emergency Contraception" in Hospitals
	Conscience rights are also at risk in bills to mandate the administration 
	of "emergency contraception" to rape victims. All Catholic hospitals observe 
	ethical directives which allow provision of emergency contraception to rape 
	victims when its mode of action would be contraceptive, i.e., preventing 
	ovulation or fertilization. Catholic hospitals, however, will not administer 
	this drug as an abortifacient, if conception has already occurred. A handful 
	of states15 are 
	considering or have considered specific mandates for emergency 
	contraception, which are designed to override the conscience rights of 
	Catholic hospitals and others.
	Though only a few state legislatures are considering such measures, an 
	organized national effort-the Abortion Access Project-is operating in 
	twenty-one states16 
	to garner support for them. It is quite clear from the project's materials, 
	including fact sheets and resources on the project's website, that it has 
	targeted Catholic hospitals.17 
	Mandating these abortifacient drugs is an incremental means to requiring 
	hospitals to perform abortions generally-indeed, the group's materials on 
	emergency contraception are included in a kit titled: "Designing A Campaign 
	To Increase Hospital-based Abortion Services."18
	Why Are There Efforts to Undermine Conscience Now?
	With conscience laws on the books for nearly thirty years, what accounts 
	for these renewed efforts to undermine rights of conscience? Part of the 
	answer lies in a desperate desire by abortion proponents and others to 
	legitimize procedures that carry a stigma in the medical profession and 
	society at large. Legalizing abortion has not made it respectable, and few 
	doctors want to train in or perform abortions. Half of Americans consider 
	abortion equivalent to murder.19 
	If abortion had to be provided in all hospitals, this would lend the 
	impression that it is basic health care. In 1995, when he called for 
	intensified efforts to require abortion training for all medical residents, 
	abortion advocate Dr. David Grimes declared that "making abortion training a 
	routine part of any residency...will put abortion back in the mainstream of
	medicine."20
	The procedures covered in the proposed Kansas legislation all have this 
	dynamic in common - that is, none of them is truly established on medical or 
	ethical grounds as basic health care, and so organized campaigns are 
	required to make them so by requiring everyone to be involved in 
	them. All these procedures are morally problematic or controversial; some of 
	them are illegal in all states (infanticide, euthanasia); some, though quite 
	new, are already illegal in a number of states (cloning, destructive embryo 
	research); and none of them can claim to treat or cure an illness.
	In the case of abortion, renewed threats to conscience can also be 
	explained by the fiercely competitive and commercial nature of the abortion 
	business. To generate the most business, abortion clinics have located in 
	urban areas almost exclusively, where there is a large population base. 
	"Abortion clinics are no different from other speciality services, said Dr. 
	William Ramos, who runs an abortion clinic in Las Vegas. 'In the entire 
	state of Nevada, there is only one Lexus dealer and only one Acura dealer', 
	he said." With abortion, Dr. Ramos continued, "there is less work and more 
	income." But to achieve the income that most abortionists expect, they must 
	remain in cities. "Clinic owners say they have little choice but to cluster 
	in cities-that is the only way they can find enough patients." Additionally, 
	in order to maintain their niche in the market, they often refuse to train 
	other physicians. "One doctor in Detroit....said that when he finished 
	medical school, trained in obstetrics and gynecology, he asked abortion 
	doctors in the area to train him. He was turned away."21
	The reality is that public sentiment against abortion has grown even 
	stronger in recent years, and fewer women are seeking abortions. Hence 
	clinic owners have become even more protective of the "business" they 
	already have, and less willing to extend their reach to rural areas where 
	few women seek abortion. Rather than "setting up shop" in such areas at a 
	risk to their profit margin, they are advocating that all hospitals be 
	required to perform abortions.
	Conclusion
	Legislation that will protect conscience by prohibiting discrimination 
	against health care providers is urgently needed to counteract these 
	attempts nationwide to undo existing protections. Respect for conscience has 
	never been, nor should it be, especially controversial. Even Planned 
	Parenthood of Kansas and Mid-Missouri recognizes the right of conscience in 
	theory, saying that it is committed "to ensure an environment which 
	affirms...exercise of the individual conscience."22 
	The problem is that Planned Parenthood's respect for conscience is partial 
	and selective, and does not take account of the conscience rights of 
	individuals and institutions that disagree with its own view of 
	"reproductive health."
	The proposed bill and other conscience protections recognize a basic 
	principle: no one, least of all a health care provider committed to healing, 
	should be forced to violate his or her conscience by participating in 
	procedures that he or she deems to be harmful or morally wrong. Out of 
	respect for religious freedom, concern for the ethical integrity of the 
	medical profession, and appreciation for the diversity of our health system 
	and our society, all should agree to help prevent such coercion. 
	
	End Notes
	1. See 42 U.S.C. § 300a-7(b) (prohibiting public 
	discrimination against individuals and entities that object to performing 
	abortions on the basis of religious beliefs or moral convictions); 42 U.S.C. 
	§ 300a-7(c) (prohibiting entities from discriminating against physicians and 
	health care personnel who object to performing abortions on the basis of 
	religious beliefs or moral convictions); 42 U.S.C. § 300a-7(e) (prohibiting 
	entities from discriminating against applicants who object to participating 
	in abortions on the basis of religious beliefs or moral convictions); 42 
	U.S.C. § 238n (prohibiting discrimination against individuals and entities 
	that refuse to perform abortions or train in their performance); 20 U.S.C. § 
	1688 (ensuring that federal sex discrimination standards do not require 
	educational institutions to provide or pay for abortions or abortion 
	benefits). 
	2. See 42 U.S.C. § 300a-7(b) (prohibiting public 
	discrimination against individuals and entities that object to performing 
	sterilizations on the basis of religious beliefs or moral convictions); 42 
	U.S.C. § 300a-7(c) (prohibiting entities from discriminating against 
	physicians and health care personnel who object to performing sterilizations 
	on the basis of religious beliefs or moral convictions); 42 U.S.C. § 
	300a-7(e) (prohibiting entities from discriminating against applicants who 
	object to participating in sterilizations on the basis of religious beliefs 
	or moral convictions. 
	3. See Treasury and General Government 
	Appropriations Act, 2002, Pub. L. No. 107-67, § 641, 115 Stat. 514, 554-5 
	(prohibiting health plans participating in the federal employee health 
	benefits program from discriminating against individuals who, for religious 
	or moral reasons, refuse to prescribe or otherwise provide for 
	contraceptives, and protecting the right of health plans that have religious 
	objections to contraceptives to participate in the program). 
	4. See 18 U.S.C. § 3597(b) (providing that 
	no state correctional employee or federal prosecutor shall be required, as a 
	condition of employment or contractual obligation, to participate in any 
	federal death penalty case or execution if contrary to his or her moral or 
	religious convictions). 
	5. See 42 U.S.C. §§ 300a-7(b), 300a-7(c), 
	300a-7(e) (conscience protections limited to entities that receive and 
	individuals who work in entities that receive federal funds under the Public 
	Health Service Act, Community Mental Health Centers Act, Developmental 
	Disabilities Services and Facilities Construction Act, or Developmental 
	Disabilities Assistance and Bill of Rights Act of 2000); Treasury and 
	General Government Appropriations Act, 2002, Pub. L. No. 107-67, § 641, 115 
	Stat. 514, 554-5 (protections under only the federal employee health 
	benefits program); 18 U.S.C. § 3597(b) (protects only prosecutors, 
	correctional and other enumerated personnel in the context of federal death 
	penalty cases and executions). 
	6. Lynn D. Wardle, "Protecting the Rights of Conscience 
	of Health Care Providers," 14 J. of Legal Med. 177, 181 (1993). 
	7. AMA House of Delegates, Annual Meeting, 2000, 
	Resolution 218. 
	8. See Proceedings of the 2000 Annual Meeting 
	of the AMA House of Delegates (American Medical Association, Chicago, 
	IL), June 2000, at 447. 
	9. Valley Hospital Association, Inc. v. Mat-Su 
	Coalition for Choice, 948 P.2d 963 (Alaska 1997). 
	10. Hospital Mergers and the Threat to Women's 
	Reproductive Health Services: Using Charitable Assets Laws to Fight Back, 
	National Women's Law Center, 2001. 
	11. ACLU, "Religious Refusals and Reproductive Rights," 
	January 2002. 
	12. See
	Preven Emergency 
	Contraception Prescribing Information (visited 02/12/02) 
	13. F. Grou and I. Rodriguez, "The Morning After Pill, 
	How Long After?" 171 American Journal of Obstetrics and Gynecology 1529-34 
	(1994). 
	14. Equity in Prescription Insurance and Contraceptive 
	Coverage Act of 2001, S. 104, 107th Congress (2001). 
	15. Illinois, Florida, Maryland, New York, Wisconsin.
	
	16. See Abortion Access Project, "Hospital 
	Access Collaborative Newsletter" Fall 2001, (visited 02/15/02). 
	17. See Abortion Access Project web site, 
	www.abortionaccess.org, for Fact Sheets, "Catholic Hospitals and the Charity 
	Myth" and "The Impact of Catholic Hospital Mergers on Women's Reproductive 
	Health Services," and the manual "Designing A Campaign To Increase 
	Hospital-based Abortion Services," especially Section C2, "Catholic 
	Hospitals and Emergency Contraception." 
	18. Abortion Access Project, "Designing 
	A Campaign To Increase Hospital-based Abortion Services," available at 
	(visited 02/11/02). 
	
	19. NY Times/CBS Poll, N.Y. Times, Jan. 16, 1998, A1. 
	20. Med. & Health, Feb. 29, 1995. 
	21. Gina Kolata, As Abortion Rate Decreases, Clinics 
	Compete for Patients, N.Y. Times, Dec. 30, 2000, at A1. 
	22. www.ppkmo.org 
	(visited 02/12/02). 
	__________________________
	Secretariat for Pro-Life Activities
	United States Conference of Catholic Bishops
	3211 4th Street, N.E., Washington, DC 20017-1194 (202) 541-3070 
	February 26, 2002 Copyright © by United States Conference of Catholic 
	Bishops