The Obama Administration is moving rapidly to overturn federal
"conscience clause" regulations protecting health care providers
who object to performing procedures that violate their religious
beliefs or moral convictions. These regulations implement
longstanding federal laws expressing the decided opinion of
Congress and the American people that no individual--doctor,
patient, or other health professional--should be forced to violate
his or her conscience in the provision of medical care.
Rather than rushing to overturn conscience protections, the
Obama Administration should leave the existing regulation in place
and work to enforce existing laws. Congress should also work to
protect health care provider conscience laws and expand protections
to include patients as well as health care providers.
What the Law Says: Three Federal
Health Care Conscience Protection Laws
The Weldon Amendment. First adopted in 2004, the Weldon
Amendment (named after former Representative Dave Weldon [R-FL])
has been included in each subsequent Health and Human Services
(HHS) appropriations act. The law's requirements apply to federal
agencies and programs as well as state and local governments
receiving federal funds from HHS.
The Weldon Amendment prohibits discrimination against health
care providers who do not provide, pay for, provide coverage for
(in the case of a health plan), or refer for, abortions. It
protects a broad number of entities including physicians and other
health care professionals, hospitals, provider-sponsored
organizations, HMOs, and health insurance plans that do not cover
abortion. It also contains important catch-all language including
in its protections "any other kind of health care facility,
organization, or plan."
Public Health Service Act Section 245. Signed into law
by President Clinton in 1996, Section 245 of the Public Health
Service Act (PHSA) places restrictions on the federal government as
well as state and local governments receiving federal financial
PHSA Section 245 prohibits discrimination against both
individuals and institutions (including doctors, hospitals, and
postgraduate training programs) that refuse to undergo training in,
require or provide training in, provide referrals for, or perform,
abortions. It also prohibits discrimination against
individuals and institutions that refuse to "make arrangements for"
any of these activities. Thus, PHSA Section 245 would on its face
prohibit discrimination against a doctor who refused even to "make
arrangements for" such activities as abortion referrals.
The Church Amendments. Named after former Senator Frank
Church (D-ID), the Church Amendments were enacted at various times
in the 1970s in part to respond to the 1973 Supreme Court decision
in Roe v. Wade and to address concerns that doctors and
faith-based hospitals would be forced to perform abortions or
sterilizations as a condition of receiving federal funds.
The Church Amendments:
- Prohibit courts and other public officials from requiring
individuals or institutions receiving grants under certain federal
programs to perform or assist in abortions or sterilizations or to
provide facilities or personnel for the same.
- Forbid discrimination against physicians or other health care
personnel because of their religious or moral objections to
performing abortions or sterilizations. Areas of prohibited
discrimination include employment, promotion, termination, and
extension of staff privileges.
- Extend protection to individuals, including researchers and
laboratory staff participating in HHS-funded behavioral or
biomedical research (including research funded by the National
Institutes of Health). Under this provision, no individual can be
discriminated against on the basis that (1) the individual
performed or assisted in any lawful research activity or (2) the
individual refused to perform or assist in any research activity
because it would be contrary to his or her religious beliefs or
moral convictions. This means, for example, that researchers who
object to participating in federally funded embryo-destroying
research cannot be fired or otherwise discriminated against on the
basis of their beliefs.
- Bar any program funded by HHS from requiring any individual to
perform or assist in "any part" of a "health service program or
research activity" if such participation would be contrary to the
individual's religious beliefs or moral convictions. On its face,
this provision covers a broad array of activities, including
contraception programs and research activities administered by
The Provider Conscience Regulation
Efforts to develop the regulation began partially in response to
a November 2007 ethics opinion by the American College of
Obstetricians and Gynecologists that raised fears that physicians
would risk losing board certification if they did not violate their
conscience by referring for abortions.
On December 18, 2008, the Bush Administration finalized a
regulation implementing the Weldon Amendment, PHSA Section 245, and
the Church Amendments. The regulation defines key statutory terms,
provides guidance for HHS grantees and other funding recipients
subject to the law's requirements, and designates the HHS Office
for Civil Rights to receive and investigate complaints of
After less than two months in office, the Obama Administration
proposed to overturn the provider conscience regulation. It
is currently conducting a 30-day public comment period on the
proposal, which ends April 9, 2009.
Conscience in Health Care: Good for
Patients and Providers
The Obama Administration should:
- Allow the provider conscience regulation to go into full
- Work to ensure compliance with existing law.
Additionally, Congress should:
- Support existing laws protecting the conscience of health care
- Expand conscience rights for both health care professionals and
The conscience protection laws stem from a long tradition of
defending religious and conscience rights in the United States,
from the First Amendment to laws protecting conscientious objectors
during time of war.
While numerous federal laws and programs spend billions of
dollars each year to promote access to health care services,
including reproductive services, conscience protection laws are
based on the premise that the nation should never require the
violation of individual moral or religious beliefs to achieve
health care access. These laws ensure that Americans from diverse
faith and philosophical backgrounds are free to pursue their
professional calling without fear of persecution or coercion.
Randolph W. Pate is Visiting Fellow
in the Richard and Helen DeVos Center for Religion and Civil
Society at The Heritage Foundation. To learn more about the
provider conscience regulation and the Obama Administration's
effort to overturn the >regulation, as well as to send a comment to
HHS supporting conscience rights for health care providers, visit
www.adoctorsright.com. Comments may be submitted
until April 9, 2009.
the Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act of 2009, Public Law 110-329, Div. A, section
101, 122 Stat. 3574, 3575.
42 U.S. Code § 238n.
42 U.S. Code § 238n(a).
Taylor v. St. Vincent's Hospital, 523 F.2d 75 (1975), where
the 9th Circuit Court of Appeals required a Catholic hospital to
provide facilities for performing sterilizations, in spite of the
hospital's faith-based policy against providing sterilizations.
42 U.S. Code § 300a-7(b).
42 U.S. Code § 300a-7(c)(1).
Church Amendments also prohibit discrimination against individuals
because of their past involvement in lawful abortions or
42 U.S. Code § 300a-7(c)(2).
See "HHS Secretary Calls on Certification
Group to Protect Conscience Rights," U.S. Department of Health and
Human Services, March 15, 2008, at http://www.hhs.gov/news/press/2008pres/03/20080314a.html
(April 3, 2009); Mark Hemingway, "A Limit to 'Choice': Obama Will
Invite Discrimination against Doctors Who Choose Not to Perform
Abortions," National Review Online, March 5, 2009, at http://article.nationalreview.com/?q=N2E3ODl
hYWRjNDQ4NGRkZTE0MWU4MDhkOWVjNzdkZjQ (April 3, 2009).
For more discussion on the importance of
protecting patients' Rights of conscience in health care, see
Robert E. Moffit and Jennifer A. Marshall, "Patients' Freedom of
Conscience: The Case for Values-Driven Health Plans," Heritage
Foundation Backgrounder No. 1933, May 15, 2006, at http://www.heritage.org/Research/HealthCare/bg1933.cfm.