II 

117TH CONGRESS 

1ST SESSION S. 401 

To amend the Public Health Service Act to prohibit governmental discrimination against health care providers that do not participate in abortion. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 24, 2021 

Mr. LANKFORD (for himself, Mr. TILLIS, Mr. SCOTT of South Carolina, Mr. 

PORTMAN, Mr. RISCH, Mr. MORAN, Mr. DAINES, Mrs. FISCHER, Mr. 

BOOZMAN, Mr. MARSHALL, Mr. CASSIDY, Mr. CRAMER, Mrs. HYDESMITH, Mr. BARRASSO, Mr. THUNE, Mr. HOEVEN, Mr. SASSE, Mr. 

INHOFE, Mrs. BLACKBURN, Mr. ROUNDS, Ms. LUMMIS, Mr. HAWLEY, 

Mr. SCOTT of Florida, Mr. LEE, and Mr. HAGERTY) introduced the following bill; which was read twice and referred to the Committee on 

Health, Education, Labor, and Pensions 

A BILL 

To amend the Public Health Service Act to prohibit governmental discrimination against health care providers that 

do not participate in abortion. 

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 2021’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds as follows: 


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1 (1) Thomas Jefferson stated a conviction com2 mon to our Nation’s founders when he declared in 

3 1809 that ‘‘[n]o provision in our Constitution ought 

4 to be dearer to man than that which protects the 

5 rights of conscience against the enterprises of the 

6 civil authority’’. 

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

8 the government must leave the abortion decision ‘‘to 

9 the medical judgment of the pregnant woman’s at10 tending physician’’, recognizing that a physician may 

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

12 410 U.S. 113, 164 (1973). The Court cited with ap13 proval a policy that ‘‘neither physician, hospital, nor 

14 hospital personnel shall be required to perform any 

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

16 410 U.S. at 143 n. 38, and cited State laws uphold17 ing this principle. Doe v. Bolton, 410 U.S. 179, 

18 197–8 (1973). 

19 (3) Religious diversity adds to the strength of 

20 our medical field, and no doctor should have to 

21 choose between giving up their faith or moral convic22 tions and abandoning a vital medical mission. Con23 gress’ enactments to protect this right of conscience 

24 in health care include the Church amendments (42 

25 U.S.C. 300a–7), the Coats/Snowe amendment (42 


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1 U.S.C. 238n), and the Weldon amendment approved 

2 by Congresses and Presidents of both parties every 

3 year since 2004 (including in section 507(d) of divi4 sion A of the Further Consolidated Appropriations 

5 Act, 2020 (Public Law 116–94; 133 Stat. 2534, 

6 2607)). 

7 (4) Courts have declined to find that these laws 

8 provide a ‘‘private right of action’’ thereby leaving 

9 victims of discrimination unable to defend their con10 science rights in court, while at the same time ad11 ministrative enforcement by the Office for Civil 

12 Rights of the Department of Health and Human 

13 Services has been inconsistent, at times allowing 

14 cases to languish for years without resolution. 

15 (5) Defying the Weldon amendment, Califor16 nia’s Department of Managed Health Care has man17 dated coverage for elective abortions in all health 

18 plans under its jurisdiction. Other States such as 

19 New York, Illinois, and Washington have taken or 

20 considered similar action, and some States may go 

21 farther to require all physicians and hospitals to pro22 vide or facilitate abortions. On June 21, 2016, the 

23 Office for Civil Rights of the Department of Health 

24 and Human Services under the Obama Administra25 tion concluded a nearly 2-year investigation of this 


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1 matter by determining that California’s decision to 

2 require insurance plans under the California Depart3 ment for Managed Health Care authority to cover 

4 abortion services did not violate the Weldon amend5 ment. At least 28,000 individuals and families sub6 sequently lost abortion-free health plans as a result 

7 of this mandate. 

8 (6) On January 24, 2020, the Office for Civil 

9 Rights of the Department of Health and Human 

10 Services disavowed its prior findings and issued a 

11 notice of violation of the Weldon amendment to Cali12 fornia. After the State’s continued noncompliance 

13 with the Weldon amendment, the Centers for Medi14 care & Medicaid Services, on December 16, 2020, 

15 announced the disallowance of $200,000,000 per 

16 quarter in Federal funds to California beginning in 

17 the first quarter of 2021. Unless the Biden Adminis18 tration provides effective and continuing enforce19 ment against California and other States, individuals 

20 will continue to be coerced contrary to law into 

21 choosing between violating their consciences or for22 going health care coverage for themselves, their em23 ployees, or their families. 

24 (7) On May 21, 2019, the Secretary of Health 

25 and Human Services issued a final conscience rule 


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1 that implements approximately 25 Federal con2 science protection provisions and provides mecha3 nisms to enforce protections enacted by Congress to 

4 ensure that the government and government-funded 

5 entities are not unlawfully discriminating against in6 dividuals, health care providers, or health care enti7 ties. Despite this regulation providing for enforce8 ment of laws passed by Congress, a Federal district 

9 court vacated the rule. Now, litigation is pending be10 fore the United States Court of Appeals for the Sec11 ond Circuit where 78 members of Congress have 

12 filed a brief in support of the rule, as well as the 

13 United States Court of Appeals for the Ninth Cir14 cuit. Litigation in both Circuits have been halted be15 cause the Biden Administration has indicated its in16 tent to revisit the rule. 

17 (8) The vast majority of medical professionals 

18 do not perform abortions, with up to 86 percent of 

19 obstetricians/gynecologists unwilling to provide them 

20 (Obstetrics & Gynecology, Sept. 2011) and the great 

21 majority of hospitals choosing to do so only in rare 

22 cases or not at all. 

23 (9) A health care provider’s decision not to par24 ticipate in an abortion, like Congress’ decision not to 

25 fund most abortions, erects no barrier to those seekVerDate Sep 11 2014 22:59 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S401.IS S401

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1 ing to perform or undergo abortions but leaves each 

2 party free to act as he or she wishes. 

3 (10) Such protection poses no conflict with 

4 other Federal laws, such as the law requiring stabi5 lizing treatment for a pregnant woman and her un6 born child when either needs emergency care (Emer7 gency Medical Treatment and Active Labor Act). As 

8 previous Administrations have said, these areas of 

9 law have operated side by side for many years and 

10 both should be fully enforced (76 Fed. Reg. 9968– 

11 77 (2011) at 9973). 

12 (11) Reaffirming longstanding Federal policy 

13 on conscience rights and providing a right of action 

14 in cases where it is violated allows longstanding and 

15 widely supported Federal laws to work as intended. 

16 SEC. 3. PROHIBITING DISCRIMINATION AGAINST HEALTH 

17 CARE PROVIDERS THAT DO NOT PARTICI18 PATE IN ABORTION. 

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

20 202 et seq.) is amended by inserting after section 245 the 

21 following: 


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1 ‘‘SEC. 245A. PROHIBITING DISCRIMINATION AGAINST 

2 HEALTH CARE PROVIDERS THAT DO NOT 

3 PARTICIPATE IN ABORTION. 

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

5 the Federal Government, and any person or entity that 

6 receives Federal financial assistance, including any State 

7 or local government, may not penalize, retaliate against, 

8 or otherwise discriminate against a health care provider 

9 on the basis that the provider does not or declines to— 

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

11 participate in abortion; 

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

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

14 the activities specified in this subsection. 

15 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec16 tion shall be construed— 

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

18 voluntarily electing to participate in abortions or 

19 abortion referrals where not prohibited by any other 

20 law; 

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

22 voluntarily electing to provide or sponsor abortion 

23 coverage or health benefits coverage that includes 

24 abortion where not prohibited by any other law; 

25 ‘‘(3) to prevent an accrediting agency, the Fed26 eral Government, or a State or local government 


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1 from establishing standards of medical competency 

2 applicable only to those who have knowingly, volun3 tarily, and specifically elected to perform abortions, 

4 or from enforcing contractual obligations applicable 

5 only to those who, as part of such contract, know6 ingly, voluntarily, and specifically elect to provide 

7 abortions; 

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

9 of the Social Security Act (42 U.S.C. 1395dd, com10 monly referred to as the ‘Emergency Medical Treat11 ment and Active Labor Act’); or 

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

13 for the purpose of regulating insurance, except as 

14 specified in subsection (a). 

15 ‘‘(c) ADMINISTRATION.—The Secretary— 

16 ‘‘(1) may issue regulations under— 

17 ‘‘(A) this section; 

18 ‘‘(B) the Religious Freedom Restoration 

19 Act of 1993 (42 U.S.C. 2000bb et seq.), with 

20 respect to any program or activity funded, ad21 ministered, or conducted by the Department of 

22 Health and Human Services; 

23 ‘‘(C) any of subsections (b) through (e) of 

24 section 401 of the Health Programs Extensions 

25 Act of 1973 (42 U.S.C. 300a–7) regarding an 


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1 objection based on a religious belief or moral 

2 conviction; and 

3 ‘‘(D) any other law protecting the exercise 

4 of conscience or religious freedom under pro5 grams or activities funded, administered, or 

6 conducted by the Department of Health and 

7 Human Services, including any laws listed 

8 under the final rule issued by the Secretary of 

9 Health and Human Services titled ‘Protecting 

10 Statutory Conscience Rights in Health Care; 

11 Delegations of Authority’ (84 Fed. Reg. 23170; 

12 May 21, 2019); 

13 ‘‘(2) shall designate the Director of the Office 

14 for Civil Rights of the Department of Health and 

15 Human Services— 

16 ‘‘(A) to receive complaints alleging a viola17 tion of any provision of this section or any pro18 vision of law referred to or listed under para19 graph (1); and 

20 ‘‘(B) to promptly investigate such com21 plaints, issue findings, and require corrective 

22 action in cases of such a violation; and 

23 ‘‘(3) shall, as permitted under law (including 

24 the Constitution of the United States), induce com25 pliance of a person or entity, including a State or 


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1 local government, refusing to comply with a provi2 sion of this section, or any provision of law referred 

3 to or listed under paragraph (1), by terminating, in 

4 whole or in part, any Federal financial assistance 

5 provided by the Secretary to such person or entity. 

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

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

8 term ‘Federal financial assistance’ means Federal 

9 payments to cover the cost of health care services or 

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

11 to promote or otherwise facilitate health-related ac12 tivities. 

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

14 ‘health care provider’ includes— 

15 ‘‘(A) an individual physician, health care 

16 assistant, nurse, pharmacist, health researcher, 

17 or other health care personnel; 

18 ‘‘(B) a hospital, laboratory, pharmacy, 

19 health system, or other health care or medical 

20 research facility or organization (including a 

21 party to a proposed merger or other collabo22 rative arrangement relating to health services, 

23 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 or education in 

8 the health professions or medical research, a 

9 participant in such a program, or any individual 

10 applying or otherwise aspiring to participate in 

11 such a program; 

12 ‘‘(F) an issuer of health insurance cov13 erage or of a health plan; or 

14 ‘‘(G) a health care sharing ministry; 

15 ‘‘(H) a health insurance plan, including 

16 group, individual, or student health plans, or a 

17 sponsor or administrator thereof; or 

18 ‘‘(I) any other health care organization, 

19 program, facility, or plan. 

20 ‘‘(3) STATE OR LOCAL GOVERNMENT.—The 

21 term ‘State or local government’ includes every 

22 agency and other governmental unit and subdivision 

23 of a State or local government, if such State or local 

24 government, or any agency or governmental unit or 


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1 subdivision thereof, receives Federal financial assist2 ance. 

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

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

5 action, obtain appropriate relief with regard to a des6 ignated violation. 

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

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

9 party’ means— 

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

11 States; or 

12 ‘‘(B) any person or entity adversely af13 fected by the designated violation without re14 gard to whether such person or entity is a 

15 health care provider. 

16 ‘‘(2) DESIGNATED VIOLATION.—The term ‘des17 ignated violation’ means an actual or threatened vio18 lation of section 245A or of any other provision of 

19 law referred to or listed under section 245A(c)(1). 

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

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

22 may be granted, without regard to whether the party com23 mencing the action has sought or exhausted any available 

24 administrative remedies. 


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1 ‘‘(d) DEFENDANTS IN ACTIONS UNDER THIS SEC2 TION MAY INCLUDE GOVERNMENTAL ENTITIES AS WELL

3 AS OTHERS.— 

4 ‘‘(1) IN GENERAL.—An action under this sec5 tion may be maintained against any person or entity 

6 receiving Federal financial assistance, including a 

7 State governmental entity. Relief in an action under 

8 this section may include money damages even if the 

9 defendant is a governmental entity. 

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

11 subsection, the term ‘State governmental entity’ 

12 means a State, a local government within a State, 

13 and any agency or other governmental unit or sub14 division of a State, or of such a local government. 

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

16 section, the court shall grant— 

17 ‘‘(1) all appropriate relief, including injunctive 

18 relief, declaratory relief, and compensatory damages 

19 to prevent the occurrence, continuance, or repetition 

20 of the designated violation and to compensate for 

21 losses resulting from the designated violation; and 

22 ‘‘(2) to a prevailing plaintiff, reasonable attor23 neys’ fees and litigation costs.’’. 

Æ 


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