(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)In 1973, the Supreme Court concluded that the government must leave the abortion decision to the medical judgment of the pregnant woman’s attending physician, recognizing that a physician may choose not to participate in abortion. Roe v. Wade, 410 U.S. 113, 164 (1973). The Court cited with approval a policy that neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles, 410 U.S. at 143 n. 38, and cited State laws upholding this principle. Doe v. Bolton, 410 U.S. 179, 197–8 (1973).
(3)Congress’ enactments to protect this right of conscience in health care include the Church amendment of 1973 (42 U.S.C. 300a–7), the Coats/Snowe amendment of 1996 (42 U.S.C. 238n), and the Weldon amendment approved by Congresses and Presidents of both parties every year since 2004.
(4)None of these laws explicitly provides a private right of action so victims of discrimination can defend their conscience rights in court, and administrative enforcement by the Department of Health and Human Services Office for Civil Rights has been lax, at times allowing cases to languish for years without resolution.
(5)Defying the Federal Weldon amendment, California’s Department of Managed Health Care has mandated coverage for all elective abortions in all health plans under its jurisdiction. Other States such as New York and Washington have taken or considered similar action, and some States may go farther to require all physicians and hospitals to provide or facilitate abortions. On June 21, 2016, the Obama Administration concluded a nearly two-year investigation of this matter by determining that California’s decision to require insurance plans under the California Department for Managed Health Care authority to cover all legal abortion services did not violate the Weldon amendment. Until the new Administration is able to reverse this finding, individuals will have to choose between ignoring their conscience or forgoing health care coverage.
(6)The vast majority of medical professionals do not perform abortions, with 86 percent of ob/gyns unwilling to provide them in a recent study (Obstetrics & Gynecology, Sept. 2011) and the great majority of hospitals choosing to do so in rare cases or not at all.
(7)A health care provider’s decision not to participate in an abortion, like Congress’ decision not to fund most abortions, erects no new barrier to those seeking to perform or undergo abortions but leaves each party free to act as he or she wishes.
(8)Such protection poses no conflict with other Federal laws, such as the law requiring emergency stabilizing treatment for a pregnant woman and her unborn child when either is in distress (Emergency Medical Treatment and Active Labor Act). As the previous Administration has 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).