I 

114TH CONGRESS 

2D SESSION H. R. 4828 

To prevent governmental discrimination against providers of health services 

who decline involvement in abortion, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 22, 2016 

Mr. FLEMING (for himself and Mrs. HARTZLER) introduced the following bill; 

which was referred to the Committee on Energy and Commerce 

A BILL 

To prevent governmental discrimination against providers of 

health services who decline involvement in abortion, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Conscience Protection 

5 Act of 2016’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds as follows: 

8 (1) Thomas Jefferson stated a conviction com9 mon to our Nation’s founders when he declared in 

10 1809 that ‘‘[n]o provision in our Constitution ought 


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1 to be dearer to man than that which protects the 

2 rights of conscience against the enterprises of the 

3 civil authority’’. 

4 (2) In 1973, the Supreme Court concluded that 

5 the government must leave the abortion decision ‘‘to 

6 the medical judgment of the pregnant woman’s at7 tending physician’’, recognizing that a physician may 

8 choose not to participate in abortion. Roe v. Wade, 

9 410 U.S. 113, 164 (1973). The Court cited with ap10 proval a policy that ‘‘neither physician, hospital, nor 

11 hospital personnel shall be required to perform any 

12 act violative of personally-held moral principles’’, 

13 410 U.S. at 143 n. 38, and cited State laws uphold14 ing this principle. Doe v. Bolton, 410 U.S. 179, 

15 197–8 (1973). 

16 (3) Congress’s enactments to protect this right 

17 of conscience in health care include the Church 

18 amendment of 1973 (42 U.S.C. 300a–7), the Coats/ 

19 Snowe amendment of 1996 (42 U.S.C. 238n), and 

20 the Hyde/Weldon amendment approved by Con21 gresses and Presidents of both parties every year 

22 since 2004. 

23 (4) None of these laws explicitly provides a 

24 ‘‘private right of action’’ so victims of discrimination 

25 can defend their conscience rights in court, and adVerDate Sep 11 2014 02:38 Mar 23, 2016 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4828.IH H4828

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1 ministrative enforcement by the Department of 

2 Health and Human Services Office for Civil Rights 

3 has been lax, at times allowing cases to languish for 

4 years without resolution. 

5 (5) Defying the Federal Hyde/Weldon amend6 ment, California’s Department of Managed Health 

7 Care has mandated coverage for all elective abor8 tions in all health plans under its jurisdiction. Other 

9 States such as New York and Washington have 

10 taken or considered similar action, and some States 

11 may go farther to require all physicians and hos12 pitals to provide or facilitate abortions. 

13 (6) Members of Congress have repeatedly ques14 tioned U.S. Health and Human Services Secretary 

15 Sylvia Burwell about California’s ongoing violation 

16 which began in August 2014. The Department of 

17 Health and Human Services has acknowledged Cali18 fornia’s violations and indicated that the Depart19 ment was taking them ‘‘seriously’’ and that the mat20 ter would be resolved ‘‘expeditiously’’. Despite nu21 merous complaints and calls for prompt enforcement 

22 of the Hyde/Weldon amendment in California, how23 ever, the Department has failed to resolve the mat24 ter. 


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1 (7) The vast majority of medical professionals 

2 do not perform abortions, with 86 percent of ob/gyns 

3 unwilling to provide them in a recent study (Obstet4 rics & Gynecology, Sept. 2011) and the great major5 ity of hospitals choosing to do so in rare cases or not 

6 at all. Therefore, a policy requiring all health care 

7 providers to be involved in abortion could seriously 

8 disrupt the health care system, reducing the number 

9 and diversity of providers available to serve the basic 

10 health needs of American women and men. 

11 (8) A health care provider’s decision not to par12 ticipate in an abortion, like Congress’s decision not 

13 to fund most abortions, erects no new barrier to 

14 those seeking to perform or undergo abortions but 

15 leaves each party free to act as he or she wishes. 

16 (9) Such protection poses no conflict with other 

17 Federal laws, such as the law requiring emergency 

18 stabilizing treatment for a pregnant woman and her 

19 unborn child when either is in distress (Emergency 

20 Medical Treatment and Active Labor Act). As the 

21 Obama administration has said, these areas of law 

22 have operated side by side for many years and both 

23 should be fully enforced (76 Federal Register 9968– 

24 77 (2011) at 9973). 


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1 (10) Reaffirming longstanding Federal policy 

2 on conscience rights and providing a right of action 

3 in cases where it is violated allows longstanding and 

4 widely supported Federal laws to work as intended. 

5 SEC. 3. GOVERNMENTAL DISCRIMINATION AGAINST PRO6 VIDERS OF HEALTH SERVICES THAT ARE NOT 

7 INVOLVED IN ABORTION. 

8 Title II of the Public Health Service Act (42 U.S.C. 

9 202 et seq.) is amended by inserting after section 245 the 

10 following: 

11 ‘‘SEC. 245A. GOVERNMENTAL DISCRIMINATION AGAINST 

12 PROVIDERS OF HEALTH SERVICES THAT ARE 

13 NOT INVOLVED IN ABORTION. 

14 ‘‘(a) IN GENERAL.—Notwithstanding any other law, 

15 the Federal Government, and any State or local govern16 ment that receives Federal financial assistance, may not 

17 penalize, retaliate against, or otherwise discriminate 

18 against a health care provider on the basis that the pro19 vider does not— 

20 ‘‘(1) perform, refer for, pay for, or otherwise 

21 participate in abortion; 

22 ‘‘(2) provide or sponsor abortion coverage; or 

23 ‘‘(3) facilitate or make arrangements for any of 

24 the activities specified in this subsection. 


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1 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec2 tion shall be construed— 

3 ‘‘(1) to prevent any health care provider from 

4 voluntarily electing to participate in abortions or 

5 abortion referrals; 

6 ‘‘(2) to prevent any health care provider from 

7 voluntarily electing to provide or sponsor abortion 

8 coverage or health benefits coverage that includes 

9 abortion; 

10 ‘‘(3) to prevent an accrediting agency or a Fed11 eral, State or local government from establishing 

12 standards of medical competency applicable only to 

13 those who have knowingly, voluntarily, and specifi14 cally elected to perform abortions, or from enforcing 

15 contractual obligations applicable only to those who, 

16 as part of such contract, knowingly, voluntarily, and 

17 specifically elect to provide abortions; 

18 ‘‘(4) to affect, or be affected by, section 1867 

19 of the Social Security Act (42 U.S.C. 1395dd, com20 monly referred to as the ‘Emergency Medical Treat21 ment and Active Labor Act’); or 

22 ‘‘(5) to supersede any law enacted by any State 

23 for the purpose of regulating insurance, except as 

24 specified in subsection (a). 


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1 ‘‘(c) ADMINISTRATION.—The Secretary shall des2 ignate the Director of the Office for Civil Rights of the 

3 Department of Health and Human Services— 

4 ‘‘(1) to receive complaints alleging a violation of 

5 this section, section 245 of this Act, or any of sub6 sections (b) through (e) of section 401 of the Health 

7 Programs Extension Act of 1973; and 

8 ‘‘(2) to pursue the investigation of such com9 plaints in coordination with the Attorney General. 

10 ‘‘(d) DEFINITIONS.—For purposes of this section: 

11 ‘‘(1) FEDERAL FINANCIAL ASSISTANCE.—The 

12 term ‘Federal financial assistance’ means Federal 

13 payments to cover the cost of health care services or 

14 benefits, or other Federal payments, grants, or loans 

15 to promote or otherwise facilitate health-related ac16 tivities. 

17 ‘‘(2) HEALTH CARE PROVIDER.—The term 

18 ‘health care provider’ means— 

19 ‘‘(A) an individual physician or other 

20 health professional; 

21 ‘‘(B) a hospital, health system, or other 

22 health care facility or organization (including a 

23 party to a proposed merger or other collabo24 rative arrangement relating to health services, 

25 and an entity resulting therefrom); 


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1 ‘‘(C) a provider-sponsored organization, an 

2 accountable care organization, or a health 

3 maintenance organization; 

4 ‘‘(D) a social services provider that pro5 vides or authorizes referrals for health care 

6 services; 

7 ‘‘(E) a program of training in the health 

8 professions or an applicant to or participant in 

9 such a program; 

10 ‘‘(F) an issuer of health insurance cov11 erage; or 

12 ‘‘(G) a group health plan or student health 

13 plan, or a sponsor or administrator thereof. 

14 ‘‘(3) STATE OR LOCAL GOVERNMENT THAT RE15 CEIVES FEDERAL FINANCIAL ASSISTANCE.—The 

16 term ‘State or local government that receives Fed17 eral financial assistance’ includes every agency and 

18 other governmental unit and subdivision of a State 

19 or local government, if such State or local govern20 ment, or any agency or governmental unit or sub21 division thereof, receives Federal financial assist22 ance. 


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1 ‘‘SEC. 245B. CIVIL ACTION FOR CERTAIN VIOLATIONS. 

2 ‘‘(a) IN GENERAL.—A qualified party may, in a civil 

3 action, obtain appropriate relief with regard to a des4 ignated violation. 

5 ‘‘(b) DEFINITIONS.—For purposes of this section: 

6 ‘‘(1) QUALIFIED PARTY.—The term ‘qualified 

7 party’ means— 

8 ‘‘(A) the Attorney General of the United 

9 States; or 

10 ‘‘(B) any person or entity adversely af11 fected by the designated violation. 

12 ‘‘(2) DESIGNATED VIOLATION.—The term ‘des13 ignated violation’ means an actual or threatened vio14 lation of— 

15 ‘‘(A) section 245 or 245A of this Act; or 

16 ‘‘(B) any of subsections (b) through (e) of 

17 section 401 of the Health Programs Extension 

18 Act of 1973 regarding an objection to abortion. 

19 ‘‘(c) ADMINISTRATIVE REMEDIES NOT REQUIRED.— 

20 An action under this section may be commenced, and relief 

21 may be granted, without regard to whether the party com22 mencing the action has sought or exhausted available ad23 ministrative remedies. 

24 ‘‘(d) DEFENDANTS IN ACTIONS UNDER THIS SEC25 TION MAY INCLUDE GOVERNMENTAL ENTITIES AS WELL

26 AS OTHERS.— 


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1 ‘‘(1) IN GENERAL.—An action under this sec2 tion may be maintained against, among others, a 

3 party that is a Federal or State governmental entity. 

4 Relief in an action under this section may include 

5 money damages even if the defendant is such a gov6 ernmental entity. 

7 ‘‘(2) DEFINITION.—For the purposes of this 

8 subsection, the term ‘State governmental entity’ 

9 means a State, a local government within a State, 

10 and any agency or other governmental unit or sub11 division of a State or of such a local government. 

12 ‘‘(e) NATURE OF RELIEF.—In an action under this 

13 section, the court shall grant— 

14 ‘‘(1) all necessary equitable and legal relief, in15 cluding, where appropriate, declaratory relief and 

16 compensatory damages, to prevent the occurrence, 

17 continuance, or repetition of the designated violation 

18 and to compensate for losses resulting from the des19 ignated violation; and 

20 ‘‘(2) to a prevailing plaintiff, reasonable attor21 neys’ fees and litigation expenses as part of the 

22 costs.’’. 

Æ 


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