[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8857 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 8857
To amend the Public Health Service Act to prohibit discrimination
against health care entities that do not participate in abortion, and
to strengthen implementation and enforcement of Federal conscience
laws.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 27, 2024
Mr. Banks (for himself, Mr. Mooney, Mr. LaMalfa, Mr. Crenshaw, Mrs.
Miller of Illinois, Mrs. Hinson, Mr. Aderholt, Mr. Bergman, Mr. Bacon,
Mr. Burchett, Mr. Finstad, Mr. Duncan, Ms. Foxx, Mr. Gosar, Mr.
Kustoff, Mr. Higgins of Louisiana, Mrs. Lesko, Mr. Moolenaar, Mr.
Walberg, Mr. Gooden of Texas, Mr. Armstrong, Mr. Weber of Texas, Mr.
Feenstra, Mr. Waltz, Mr. Smith of Nebraska, Mr. Lamborn, Mr.
Luetkemeyer, Mr. Loudermilk, Mr. Fitzgerald, Mr. Timmons, Mr. Posey,
Mr. Rutherford, Mr. Pence, Mr. Webster of Florida, Mr. Guest, Mr. Mann,
Mrs. Bice, Mr. Crane, and Mr. Wenstrup) introduced the following bill;
which was referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To amend the Public Health Service Act to prohibit discrimination
against health care entities that do not participate in abortion, and
to strengthen implementation and enforcement of Federal conscience
laws.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Conscience Protection Act of 2024''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) Thomas Jefferson stated a conviction common to our
Nation's founders when he declared in 1809 that ``[n]o
provision in our Constitution ought to be dearer to man than
that which protects the rights of conscience against the
enterprises of the civil authority''.
(2) No health care entity should have to choose between
giving up their religious, moral, ethical, or medical
convictions and abandoning a vital medical mission. Congress
enacted more than two dozen provisions in Federal statutes to
protect such rights in health care, which also protect States'
ability to operate in accordance with their laws to protect
similar rights without fear of retaliation from the Federal
Government. Such provisions of Federal statutes include--
(A) subsections (b) through (e) of section 401 of
the Health Programs Extension Act of 1973 (42 U.S.C.
300a-7) (commonly known, and referred to in this
section, as the ``Church Amendments'');
(B) section 245 of the Public Health Service Act
(42 U.S.C. 238n) (commonly known as the ``Coats-Snowe
Amendment'');
(C) the Weldon Amendment approved by Congresses and
Presidents of both parties every year since 2004
(including section 507(d) of the Departments of Labor,
Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2023 (division H of the
Consolidated Appropriations Act, 2023 (Public Law 117-
328))); and
(D) other conscience protections, as outlined in
the final rule issued by the Secretary of Health and
Human Services entitled ``Protecting Statutory
Conscience Rights in Health Care; Delegations of
Authority'' (84 Fed. Reg. 23170; May 21, 2019), under
the Patient Protection and Affordable Care Act, under
the Social Security Act, and with respect to global
health programs and advanced directives.
(3) Courts have held that certain conscience protection
statutes do not provide a ``private right of action'' for
individuals or entities who have been discriminated against,
thereby leaving victims of discrimination unable to defend
their own conscience rights in court. At the same time,
administrative implementation and enforcement of these laws by
the Office for Civil Rights of the Department of Health and
Human Services have been inconsistent and at times cases are
allowed to languish for years or previously enacted enforcement
measures are abandoned or reversed.
(4) Defying the Weldon Amendment, the California Department
of Managed Health Care has mandated coverage for elective
abortions in all health plans under its jurisdiction. Other
States, such as New York, Illinois, and Washington, have taken
or considered similar action, and some States have required
hospitals to provide or facilitate abortions. On June 21, 2016,
the Office for Civil Rights of the Department of Health and
Human Services, under the Obama Administration, concluded a
nearly 2-year investigation of this matter by determining that
the decision of California to require insurance plans under the
California Department for Managed Health Care authority to
cover abortion services did not violate the Weldon Amendment.
At least 28,000 individuals and families subsequently lost
abortion-free health plans as a result of this mandate in
violation of their consciences and rights under the Weldon
Amendment.
(5) On January 24, 2020, the Office for Civil Rights of the
Department of Health and Human Services disavowed its prior
findings and issued a notice of violation of the Weldon
Amendment to California. After the State's continued
noncompliance with the Weldon Amendment, the Centers for
Medicare & Medicaid Services, on December 16, 2020, announced
the disallowance of $200,000,000 per quarter in Federal funds
to California beginning in the first quarter of 2021.
(6) Although California had taken no action to come into
compliance with the Weldon Amendment, on August 13, 2021, the
Office for Civil Rights of the Department of Health and Human
Services under the Biden Administration withdrew the notice of
violation and closed the complaints filed with the Department.
As a result, individuals continue to be coerced contrary to law
into choosing between violating their consciences or forgoing
health care coverage for themselves, their employees, and their
families.
(7)(A) On August 28, 2019, the Office for Civil Rights of
the Department of Health and Human Services under the Trump
Administration issued a notice of violation against the
University of Vermont Medical Center for violation of the
Church Amendments after it was found to have scheduled
approximately 10 nurses who had registered conscience
objections to abortion to assist with approximately 20 abortion
procedures and for maintaining policies that explicitly
required employees with conscience objections to participate in
procedures with which they disagreed to ``ensure that patient
care is not negatively impacted''. Such practices were found to
be part of an ``ongoing pattern, practice, and policy of
discriminating against health care providers who believe that
the performance, or the assistance in the performance, of
abortions is contrary to their religious beliefs or moral
convictions''.
(B) After the University of Vermont Medical Center refused
to come into compliance with the law, the Department of Justice
brought an enforcement action in Federal court against the
medical center on December 16, 2020.
(C) On July 30, 2021, the Department of Justice under the
Biden Administration voluntarily dismissed the case, without
any binding settlement or requirement that the University of
Vermont Medical Center remedy its unlawful policies or make
restitution to the employees whose rights it violated.
(8) On May 21, 2019, the Secretary of Health and Human
Services issued the final rule entitled ``Protecting Statutory
Conscience Rights in Health Care; Delegations of Authority''
(84 Fed. Reg. 23170; May 21, 2019) to implement 25 Federal
conscience protection provisions governing programs funded
under the Department of Health and Human Services and provide
mechanisms to enforce conscience laws to ensure that the
government and government-funded entities are not unlawfully
discriminating against health care entities. Despite this
regulation providing for enforcement of laws passed by
Congress, the rule faced numerous legal challenges and was
vacated.
(9) On January 11, 2024, the Department of Health and Human
Services published a final rule that fails to equip the
Department with the tools necessary for effective enforcement
of Federal statutory protections of rights of conscience.
(10) Congress has acted numerous times to expand access to
health care and has also acted numerous times to provide
unqualified statutorily protected rights of conscience to
individuals and entities in certain circumstances. A health
care entity's decision not to participate in an abortion,
assisted suicide, procedures that can result in sterilization,
or other interventions erects no barrier to those legally
seeking to perform or undergo such interventions elsewhere.
(11) The vast majority of medical professionals do not
perform abortions. Ninety-three percent of obstetricians/
gynecologists in private practice report that they did not
provide abortions (National Library of Medicine, April 2018)
and the great majority of hospitals choose to do so only in
rare cases or not at all.
(12) In the landmark 2022 decision, Dobbs v. Jackson
Women's Health Organization, the Supreme Court held that ``the
Constitution does not confer a right to abortion''.
(13) On July 13, 2022, the Department of Health and Human
Services issued guidance to retail pharmacies in the United
States. Such guidance purported to address their obligations
under Federal nondiscrimination laws, but in actuality orders
pharmacies to stock and dispense abortion pills despite the
fact that pharmacies and pharmacists have a right to not
violate their conscience by participating in abortion under
existing law.
(14) Conscience protections pose no conflict with other
Federal laws, such as the law requiring stabilizing treatment
for a ``pregnant woman . . . or her unborn child'' when either
needs emergency care (Emergency Medical Treatment and Active
Labor Act). As previous Administrations have said, these areas
of law have operated side by side for many years and both
should be fully enforced (76 Fed. Reg. 9968-77 (2011) at 9973).
(15) Reaffirming longstanding Federal policy on conscience
rights and providing a private right of action in cases where
it is violated allows longstanding and widely supported Federal
laws to work as intended.
SEC. 3. PROHIBITING DISCRIMINATION AGAINST HEALTH CARE ENTITIES THAT DO
NOT PARTICIPATE IN ABORTION.
Title II of the Public Health Service Act (42 U.S.C. 202 et seq.)
is amended by inserting after section 245 the following:
``SEC. 245A. PROHIBITING DISCRIMINATION AGAINST HEALTH CARE ENTITIES
THAT DO NOT PARTICIPATE IN ABORTION.
``(a) In General.--Notwithstanding any other law, the Federal
Government, and any individual or entity that receives Federal
financial assistance, including any State or local government, may not
penalize, retaliate against, or otherwise discriminate against a health
care entity on the basis that such health care entity does not or
declines to--
``(1) provide, perform, refer for, pay for, or otherwise
participate in abortion;
``(2) provide or sponsor abortion coverage; or
``(3) facilitate or make arrangements for any of the
activities specified in this subsection.
``(b) Rule of Construction.--Nothing in this section shall be
construed--
``(1) to prevent any health care entity from voluntarily
electing to participate in abortions or abortion referrals
where not prohibited by any other law;
``(2) to prevent any health care entity from voluntarily
electing to provide or sponsor abortion coverage or health
benefits coverage that includes abortion where not prohibited
by any other law;
``(3) to prevent an accrediting agency, the Federal
Government, or a State or local government from establishing
standards of medical competency applicable only to those who
have knowingly, voluntarily, and specifically elected to
perform abortions, or from enforcing contractual obligations
applicable only to those who, as part of such contract,
knowingly, voluntarily, and specifically elect to provide
abortions;
``(4) to affect, or be affected by, any Federal law that
requires stabilizing treatment for a pregnant woman or her
unborn child when either needs emergency care; or
``(5) to supersede any law enacted by any State for the
purpose of regulating insurance, except as specified in
subsection (a).
``(c) Definitions.--For purposes of this section:
``(1) Federal financial assistance.--The term `Federal
financial assistance' means Federal payments to cover the cost
of health care services or benefits, or other Federal payments,
grants, or loans to promote or otherwise facilitate health-
related activities.
``(2) Health care entity.--The term `health care entity'
includes--
``(A) an individual physician, health care
assistant, nurse, pharmacist, health researcher, or
other health care personnel;
``(B) a hospital, laboratory, pharmacy, health
system, or other health care or medical research
facility or organization (including a party to a
proposed merger or other collaborative arrangement
relating to health services, and an entity resulting
therefrom);
``(C) a provider-sponsored organization, an
accountable care organization, or a health maintenance
organization;
``(D) a social services provider that provides or
authorizes referrals for health care services;
``(E) a program of training or education in the
health professions or medical research, a participant
in such a program, or any individual applying or
otherwise aspiring to participate in such a program;
``(F) an issuer of health insurance coverage or of
a health plan;
``(G) a health care sharing ministry;
``(H) a health insurance plan, including group,
individual, or student health plans, or a sponsor or
administrator thereof; or
``(I) any other health care organization, program,
facility, or plan.
``(3) State or local government.--The term `State or local
government' includes every agency and other governmental unit
and subdivision of a State or local government, if such State
or local government, or any agency or governmental unit or
subdivision thereof, receives Federal financial assistance.''.
SEC. 4. STRENGTHENING ENFORCEMENT OF FEDERAL CONSCIENCE LAWS.
Title II of the Public Health Service Act (42 U.S.C. 202 et seq.),
as amended by section 3, is further amended by inserting after section
245A the following:
``SEC. 245B. ADMINISTRATIVE ENFORCEMENT OF FEDERAL CONSCIENCE LAWS.
``(a) Regulations.--
``(1) In general.--Under this section, the Secretary may
issue regulations under any provision of law described in
paragraph (2).
``(2) Provisions of law.--The provisions of law described
in this paragraph are each of the following:
``(A) Sections 245, 245A, 399M(d), and 520E(f) of
this Act.
``(B) The Religious Freedom Restoration Act of
1993, with respect to any program or activity funded,
administered, or conducted by the Department of Health
and Human Services.
``(C) Any of subsections (b) through (e) of section
401 of the Health Programs Extension Act of 1973
(commonly known as the `Church Amendments'), only with
respect to an objection based on a religious belief or
moral conviction.
``(D) Section 507(d) of the Departments of Labor,
Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2023 (division H of the
Consolidated Appropriations Act, 2023 (Public Law 117-
328)) (commonly known as the `Weldon Amendment') and
any subsequent substantially similar provision in an
appropriations Act, to the extent administered by the
Secretary.
``(E) Section 209 of the Departments of Labor,
Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2023 (division H of the
Consolidated Appropriations Act, 2023 (Public Law 117-
328)) and any subsequent substantially similar
provision in an appropriations Act, to the extent
administered by the Secretary.
``(F) Clauses (i) and (ii) of paragraph (1)(A) of
section 1303(b) of the Patient Protection and
Affordable Care Act (only with respect to a
determination not to provide coverage of abortion), and
paragraph (4) of such section.
``(G) Section 1411(b)(5)(A) of the Patient
Protection and Affordable Care Act (other than with
respect to an exemption as an Indian or a hardship
exemption) and section 5000A(d)(2)(A) of the Internal
Revenue Code of 1986.
``(H) Section 1553 of the Patient Protection and
Affordable Care Act.
``(I) Sections 1122(h), 1162, 1821, 1861(e),
1861(y)(1), and 1861(ss) of the Social Security Act,
and the first paragraph of the matter following section
1902(a)(87)(D) of such Act, each of such provisions
only with respect to protections for religious
nonmedical health care institutions.
``(J) Sections 1852(j)(3)(B), 1866(f)(4),
1902(w)(3), 1902(w)(5), 1907, 1928(c)(2)(B)(ii) (with
respect to a religious or other exemption),
1932(b)(3)(B), and 2012(b) of such Act.
``(K) Section 4206(c) of the Omnibus Budget
Reconciliation Act of 1990.
``(L) Section 7 of the Assisted Suicide Funding
Restriction Act of 1997.
``(M) Section 113(a) of the Child Abuse Prevention
and Treatment Act.
``(N) Section 301(d) of the United States
Leadership Against HIV/AIDS, Tuberculosis, and Malaria
Act of 2003 to the extent administered by the
Secretary.
``(O) The third sentence of section 20(a)(5) of the
Occupational Safety and Health Act of 1970.
``(P) Section 104(f)(1) of the Foreign Assistance
Act of 1961 (commonly known as the `Helms Amendment'),
and any provision of an appropriations Act or other
Federal law that restates or incorporates by reference
the protections of such section, to the extent
administered by the Secretary.
``(Q) The ninth proviso under the heading `Global
Health Programs' under the heading `Funds Appropriated
to the President' under title III of the Department of
State, Foreign Operations, and Related Programs
Appropriations Act, 2023 (division K of the
Consolidated Appropriations Act, 2023 (Public Law 117-
328)) and any subsequent substantially similar
provision in an appropriations Act to the extent
administered by the Secretary.
``(R) Any other provision of law protecting the
exercise of conscience or religious freedom under
programs or activities funded, administered, or
conducted by the Department of Health and Human
Services.
``(b) Office for Civil Rights.--The Secretary shall designate the
Director of the Office for Civil Rights of the Department of Health and
Human Services--
``(1) to receive complaints alleging a violation of any
provision of law described in subsection (a)(2); and
``(2) to promptly investigate such complaints, issue
findings, and require corrective action in cases of such a
violation.
``(c) Enforcement.--
``(1) In general.--The Secretary shall, as permitted under
law (including the Constitution of the United States), induce
compliance of an individual or entity, including a State or
local government, failing to comply with any provision of law
described in subsection (a)(2), by terminating, in whole or in
part, any Federal financial assistance provided by the
Secretary to such individual or entity.
``(2) Referrals.--The Secretary shall, as the Secretary
determines necessary for inducing compliance with a provision
described in paragraph (1), refer a violation of such a
provision to the Attorney General for a civil action in
accordance with section 245C.
``SEC. 245C. CIVIL ACTION FOR VIOLATIONS OF FEDERAL CONSCIENCE LAWS.
``(a) In General.--A qualified party may, in a civil action, obtain
relief described in subsection (e) with respect to a designated
violation.
``(b) Definitions.--For purposes of this section:
``(1) Designated violation.--The term `designated
violation' means an actual or threatened violation of any
provision of law described in section 245B(a)(2).
``(2) Qualified party.--The term `qualified party' means--
``(A) the Attorney General; or
``(B) any individual or entity adversely affected
by the designated violation without regard to whether
such individual or entity is a health care entity as
defined in section 245A(c).
``(c) Administrative Remedies Not Required.--An action under this
section may be commenced, and relief may be granted, without regard to
whether the party commencing the action has sought or exhausted any
available administrative remedies.
``(d) Defendants in Actions Under This Section May Include
Governmental Entities as Well as Others.--
``(1) In general.--An action under this section may be
maintained against any individual or entity receiving Federal
financial assistance (as defined in section 245A(c)), including
a State governmental entity. Relief in an action under this
section may include money damages even if the defendant is a
governmental entity.
``(2) Definition.--For the purposes of this subsection, the
term `State governmental entity' means a State, a local
government within a State, and any agency or other governmental
unit or subdivision of a State, or of such a local government.
``(e) Nature of Relief.--In an action under this section, the court
shall grant--
``(1) all appropriate relief, including injunctive relief,
declaratory relief, and compensatory damages to prevent the
occurrence, continuance, or repetition of the designated
violation and to compensate for losses resulting from the
designated violation; and
``(2) to a prevailing plaintiff, reasonable attorneys' fees
and litigation costs.''.
SEC. 5. SEVERABILITY.
If any provision of this Act or an amendment made by this Act, or
the application of such a provision or amendment to any individual,
entity, government, or circumstance, is held to be unconstitutional,
the remainder of this Act and the amendments made by this Act, and the
application of such provision or amendment to any other individual,
entity, government, or circumstance, shall not be affected.
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