Interested Persons Memo on S. 2008/H.R. 4691 -- A Broad and Dangerous Refusal Clause That Threatens Reproductive Health

MEMORANDUM

TO: Interested Persons

FROM: ACLU Washington National Office

RE: S. 2008/H.R. 4691 -- A Broad and Dangerous Refusal Clause That Threatens Reproductive Health

DATE: August 1, 2002

The ACLU strongly opposes S. 2008/H.R. 4691, a bill drafted by the U.S. Conference of Catholic Bishops and sponsored in the House by Representatives Dick Armey (R-TX), Joseph Pitts (R-PA), and Michael Bilirakis (R-FL), and in the Senate by Senator Judd Gregg (R-NH). S. 2008/H.R. 4691 would allow a broad range of health care entities to refuse to comply with a wide array of federal, state, and local requirements to provide reproductive health services.

The ACLU believes that refusal clauses such as S. 2008/H.R. 4691, which permit a person or entity to refuse to provide reproductive health services, should be tested against two factors: (1) the extent to which the clause protects religious refusals that place burdens on people who do not share the beliefs that motivate the refusal (by "burdens," we mean obstacles to health care and other critical personal interests, but not the mere exposure of third parties to religious practices or the tax or other financial burdens that may result from permitting certain exemptions); and (2) the extent to which the clause protects institutions engaged primarily in religious worship or instruction, or instead exempts institutions engaged in a secular pursuit in the public sphere. Although this test is not compelled by any legal ruling, the ACLU believes that it strikes the appropriate balance between reproductive rights and religious freedom. S. 2008/H.R. 4691 fails the test because its burdens would fall primarily on those who do not share the beliefs that motivate the refusal and because it protects institutions engaged in the public and secular provision of health care.

Because S. 2008/H.R. 4691 amounts to a broad noncompliance permit for religious entities that employ and serve people of all faiths, that perform a variety of public functions, and that accept federal, state, and local financial support, the ACLU strongly opposes this bill.

Current Law

S. 2008/H.R. 4691 would radically expand a provision of law known as the Coats Amendment, 42 U.S.C. § 238n. The Coats Amendment, adopted in 1996, prohibits the government from "discriminating" against medical residency programs or other entities that lose accreditation because they fail to provide or require training in abortion services. The amendment was passed after the Accreditation Council for Graduate Medical Education adopted a professional standard requiring residency programs in obstetrics and gynecology to provide abortion training. Under the standard applicable at that time, residency programs or physicians with religious or moral objections could opt out of the required abortion training, although programs remained responsible for insuring that willing residents received abortion training at another institution.

The Coats Amendment established that the government could not "discriminate" against a medical residency program solely on the basis of the program's refusal to train new doctors in abortion practice or to refer them elsewhere for such training. The Amendment prohibited such governmental "discrimination" even when a residency program lost its accreditation because of its failure to offer training.

Proposed Expansion of Current Law

Although proponents have misleadingly characterized S. 2008/H.R. 4691 as a "clarification" of existing law, it would in fact alter existing law. The Coats Amendment focuses on the narrow context of postgraduate physician training programs. That statute was never intended to provide broad license for all manner of health care entities -- from hospitals to insurance companies to HMOs -- to avoid basic legal requirements imposed by all levels of government.

S. 2008/H.R. 4691 expands current law in two ways: First, it expands the list of activities in which a health care entity may refuse to participate. Currently, those activities include providing abortions, training in the performance of abortions, and making referrals for abortions or abortion training. The bill would add the terms "provide coverage for" or "pay for" to that list. Second, it expands the definition of "health care entity" far beyond the limited sphere of individual physicians and residency programs. It would include "other health professional[s]," "hospital[s]," "provider sponsored organization[s]," "health maintenance organization[s]," "health insurance plan[s]," or "any other kind of health care facility, organization, or plan."

If enacted, the newly expanded language would provide (amendments in italics):
The Federal Government, and any State or local government that receives Federal financial assistance, may not subject any health care entity to discrimination on the basis that --
(1) the entity refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform, provide coverage of, or pay for induced abortions, or to provide referrals for such training or such abortions;

. . .

(c) Definitions:
For purposes of this section:

. . .

(2) The term ''health care entity'' includes an individual physician or other health professional, a postgraduate physician training program, a participant in a program of training in the health professions, a hospital, a provider sponsored organization, a health maintenance organization, a health insurance plan or any other kind of health care facility, organization or plan.

Practical Effects of the Proposal

The main effect of S. 2008/H.R. 4691 is to prohibit a governmental entity from "discriminating" -- that is, treating a health care entity differently -- on the basis of the entity's refusal to perform, refer, train, cover, or pay for abortions. But what constitutes "discrimination" would no doubt be the subject of debate and potential litigation.

S. 2008/H.R. 4691 could have the following effects, among others:

• It would compromise the ability of Title X clients to obtain information critical to their health. Title X, which provides federal funds for contraceptive services for low-income individuals, requires that grantees provide a referral to a qualified abortion provider upon request as part of non-directive options counseling for pregnant women. S. 2008/H.R. 4691 would prohibit the federal government from enforcing this regulation if it were deemed "discriminatory" to deny Title X grants to providers that refuse to make abortion referrals. The bill could thus undermine federal standards and compromise the health of low-income pregnant women by denying them critical information.

• It would interfere with the delivery of abortion services to poor women in dire emergencies. S. 2008/H.R. 4691 would impede a state's ability to comply with the federal Hyde Amendment, which mandates coverage of abortions for women in the Medicaid program in cases of rape, incest, or where the pregnancy endangers a woman's life. Requiring managed care organizations that participate in the Medicaid program to provide such coverage could constitute "discrimination" against those that refuse to provide or refer patients elsewhere for these services.

• It would interfere with states' ability to enforce their own laws on abortion. S. 2008/H.R. 4691 could prevent those states that cover medically necessary abortions beyond those mandated by the Hyde Amendment (whether as a result of state constitutional rulings or by virtue of state laws) from effectuating that coverage by contracting only with Medicaid managed care organizations that agree to provide or refer for abortion services. Currently, more than fifteen states require such coverage. The provision would interfere with these states' ability to enforce their own laws and constitutional decisions and to manage and ensure delivery of mandated services within their own Medicaid programs.

• It would disrupt the enforcement of state health care regulations. S. 2008/H.R. 4691 would thwart the enforcement of state and local laws that require entities certified or licensed by the state to address the full range of health care needs in the communities they serve. A state might be prevented, for example, from denying a "certificate of need" (a state-issued document that is similar to a permit and that is often required before two hospitals can merge) to a newly merged hospital that refused to provide even lifesaving abortions and thus left pregnant women in the community without help in medical emergencies. (Mergers between a religiously affiliated hospital and a secular hospital often raise this issue because some religiously affiliated hospitals insist that the newly merged entity apply religious doctrine in the provision of health services.)

• It could strip states of their autonomy and right to self-governance and violate basic principles of federalism. If interpreted as proponents urge, S. 2008/H.R. 4691 might interfere with the enforcement of rulings by those state courts that have concluded that their state constitutions require broader protection for reproductive freedom than the federal Constitution provides. For example, proponents claim that the bill would overrule Valley Hospital v. Mat-su Coalition for Choice, 948 P.2d 963 (Alaska 1997), in which the Alaska Supreme Court concluded that the Alaska Constitution requires that quasi-public hospitals provide abortion services. If interpreted as its proponents urge, this bill would abrogate this state constitutional decision because it would prohibit "discrimination" against quasi-public entities for their refusal to provide or refer for abortions. It would thus strip states of their autonomy and violate basic principles of federalism that establish dual sovereignty in the federal government and the governments of the states, each gaining authority from their respective constitutions.

• It might interfere with the enforcement of certain state trust laws. These laws prevent hospitals or other health facilities established as charitable trusts from making significant changes in their charitable purposes. For example, charitable trust laws may prohibit a hospital founded specifically to serve a broad segment of the community from eliminating the provision of reproductive health services. At least one state has enforced its charitable trust law against a hospital that sought to convert from a community facility to a religiously controlled facility that provided more limited reproductive health services. Proponents of S. 2008/H.R. 4691 argue that such a state would be deemed to have impermissibly "discriminated" against the hospital under this bill.

• It could immunize a health care entity's refusal to provide emergency contraception, even to victims of rape. Because it does not define the term "abortion," S. 2008/H.R. 4691 could permit health care entities to refuse to provide emergency contraception, even to victims of rape. Although emergency contraception is merely a high dose of ordinary birth control pills and does not interrupt an established pregnancy, some religiously affiliated providers define emergency contraception as an "abortifacient." Health care entities that subscribe to this view could use this bill to attempt to shield themselves from repercussions for refusing to comply with state laws that require hospitals to provide emergency contraception (or referrals for emergency contraception) to rape survivors who present in their emergency rooms.

Enforcement Mechanism

S. 2008/H.R. 4691 employs a broad and draconian enforcement mechanism that disproportionately punishes states. It would deny all federal financial assistance to a state or local government that engaged in the proscribed "discrimination," not just the federal financial assistance that is reasonably related to the subject matter covered by the provision. Thus, for example, the actions of a state government with respect to referrals for abortion services could result in that state's loss of all federal funding in all programs. The absence of a reasonable relationship between this bill and the entire package of federal financial assistance granted to a state or locality for any purpose makes the bill's enforcement mechanism inappropriately harsh.

Where the Public Stands

In addition to its other serious flaws, S. 2008/H.R. 4691 would conflict with the views of the overwhelming majority of Americans. Recent research shows that the vast majority of Americans oppose allowing health care providers to deny services on the basis of moral or religious objections.

• 76% of the public opposes giving hospitals an exemption allowing them to refuse to provide medical services to which they object on religious grounds.

• 89% of the public opposes allowing insurance companies to refuse to pay for medical services to which the insurance company objects on religious grounds.

• 79% of the public finds convincing the statement that "[r]eligiously affiliated hospitals should not be allowed to force their religious beliefs on other people."

Thus, S. 2008/H.R. 4691 is out of step with the views of most Americans.

Conclusion

Even interpreting it conservatively, S. 2008/H.R. 4691 is a potentially sweeping federal exemption from current legal and regulatory requirements that govern access to health services. In fact, it amounts to a broad non-compliance permit for religiously affiliated entities that serve the general public and receive public funds but nevertheless want exemptions from the general laws that govern other health care entities. The ACLU therefore opposes this dangerous measure.