Soon after taking office, President Obama made it a top priority to reverse a regulation that allows health care providers the right to refuse to perform services to which they object. The regulation, issued by executive order by the Bush Administration and finalized on December 19, 2008, broadens the application of conscience protections initially offered under the Church Amendment, a 30-year-old law establishing protections for health care providers who object to providing abortions or other family planning services. The Bush regulation applied broadly to all workers in a health care setting and included the right to refuse to provide services, information, or advice to patients about subjects to which the provider has moral objections. The Obama Administration began the administrative process to reverse the Bush Administration’s regulation with a proposed rule change in the Federal Register March 10, 2009. However, despite his actions to rescind the regulatory conscience clause protection for health care providers, President Obama stated in his September 9, 2009 address to Congress on health care reform legislation that “federal conscience laws would remain in place.”
How Existing Conscience Protections Impact Health Care Reform
The Bush regulation was a compilation of three underlying amendments. First, the Church Amendments provide fairly comprehensive statutory (strongest) conscience protection; however, they apply only to programs that receive funding through the Public Health Service Act (and two other unrelated acts). None of the funding in the current health care reform bills goes through this funding stream, meaning that the Church amendments would NOT apply.
The Coats Amendments, like the Church Amendments, are statutory protections; however, they apply to graduate medical education funding and focus on restrictions on training health care providers to perform abortions. This is not directly on point with the provisions in the health care reform bills, and thus does not provide sufficient protection.
The protections offered by the Weldon Amendment are included in the Bush regulation. The Weldon Amendment is fairly comprehensive in its scope of protection for conscience rights; however, like the Hyde Amendment restriction on abortion funding, the Weldon Amendment is attached to the yearly Labor Health and Human Services (LHHS) appropriations bill, and thus it is NOT permanent law. Like Hyde, the Weldon Amendment’s protection could fail if Congress refuses to add it to the LHHS bill. Furthermore, the Weldon Amendment only applies to programs appropriated through LHHS Appropriations. There are many provisions in the health care reform bills that bypass the LHHS appropriations altogether and self-appropriate. This means that even if the Weldon Amendment remains, it would offer no protection on those provisions, such as the public plan. For more information, see Health Care Bills in Congress.
Therefore, a broad conscience clause, much like the Weldon Amendment, must be statutorily included in the final health care reform bill before Congress. Without it, the only comprehensive conscience protection that would apply to all of health care reform would be the current Bush regulation, which President Obama is in the process of rescinding.
Conscience Protection in the Healthcare Reform Proposals before Congress
There are presently four different conscience clauses in the health care reform proposals before Congress: two competing clauses were added to the health care reform bill in the House (H.R. 3200) during the Energy and Commerce Committee mark-up, the Capps Amendment and the Stupak/Pitts Amendment; the Kennedy conscience amendment was added during mark-up to the Senate Health, Education, Labor, and Pensions (HELP) Committee bill; and the Senate Finance Committee (Baucus) bill includes language similar to the Capps Amendment.
1. H.R. 3200
H.R. 3200 currently contains two conscience clauses. Reps. Pitts, Stupak, and Lee Terry (R-Neb.) drafted a conscience clause which the Energy and Commerce Committee passed by voice vote, and Rep. Capps also included a conscience clause in the amendment she successfully offered on July 30.
The Stuapak-Pitts Amendment mirrors existing law, i.e., the clear protections for those who oppose abortion which are provided annually through the Weldon conscience amendment (that must be added to an appropriations bill annually). It prohibits federal, state, or local governments that receive funds under H.R. 3200 from subjecting any health care entity to discrimination “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
By contrast, the Capps Amendment prohibits health insurance plans participating in the Exchange (not government entities) from discriminating “against any individual health care providers or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” In other words, this provision protects the right of conscience for abortion providers, and would therefore require pro-life insurance companies to contract, against their conscience, with abortion providers.
2. Senate HELP Committee Bill
The late Sen. Ted Kennedy (D-MA) offered an amendment on July 13 to the HELP bill (amdt. 205) which would ensure that no health care provider or entity is excluded from contracting with an insurance plan participating in “the Gateway” (the HELP bill’s health care exchange framework) on the basis that the provider or entity refuses to perform abortions if performing abortions would be contrary to the religious or moral beliefs of the individual or entity. This amendment was accepted. The scope of the Kennedy amendment is limited however. It does not cover providers who refuse to pay for or refer patients for abortion services. In addition, the amendment provides an exception for “cases of emergency,” which is undefined and can be stretched to fit almost any situation, effectively stripping providers of any protection the amendment may have offered them. Medical providers need true rights of conscience protection and an ability meaningfully to object to performing abortions.
Sen. Coburn offered an amendment (a codification of the Weldon conscience amendment that must be added to an appropriations bill annually) to ensure that health care providers are not forced to participate in abortions or discriminated against because they choose not to do abortions (amdt. 246). The Coburn amendment was defeated.
3. Senate Finance Committee Bill
The Senate Finance Bill includes a conscience provision that mirrors the Capps Amendment in H.R. 3200. Like the Capps Amendment, the Senate Finance Bill would also protect abortionists from discrimination, thereby forcing pro-life insurance companies to contract with the abortionists.
Senator Orrin Hatch offered an amendment (#C13) that would have mirrored the Weldon conscience amendment (that must be added to an appropriations bill annually). However, it was defeated 13-10, with Senator Snowe (R-ME) crossing party lines to vote against the amendment, and Senator Conrad (D-ND) crossing party lines to support the amendment.
Health care providers should be free to deliver care in ethical ways without fear of government reprisal. Any health care reform legislation should protect rights of conscience to the fullest extent possible, and members of Congress must hold President Obama to his word to preserve the current conscience protections.
 “The Department of Health and Human Services proposes to promulgate regulations to ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law, pursuant to the Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209).”