The History and Effect of Abortion Conscience Clause Laws
The History and Effect of Abortion
Conscience Clause Laws
October 8, 2008
Jon O. Shimabukuro
American Law Division
The History and Effect of Abortion
Conscience Clause Laws
Conscience clause laws allow medical providers to refuse to provide services
to which they have religious or moral objections. In some cases, these laws are
designed to excuse such providers from performing abortions. While substantive
conscience clause legislation has not been approved, appropriations bills that include
conscience clause provisions have been passed. This report describes the history of
conscience clauses as they relate to abortion law and provides a legal analysis of the
effects of such laws. The report also reviews recent proposed regulations to
implement some of the conscience clause laws.
Recent Legislation and its Effect on Existing Law....................3
Proposed Conscience Regulations.................................5
The History and Effect of Abortion
Conscience Clause Laws
Conscience clause laws allow medical providers to refuse to provide services
to which they have religious or moral objections. These laws are generally designed
to reconcile “the conflict between religious health care providers who provide care
in accordance with their religious beliefs and the patients who want access to medical
care that these religious providers find objectionable.”1 Although conscience clause
laws have grown to encompass protections for entities that object to a wide array of
medical services and procedures, such as providing contraceptives or terminating
life-support, the original focus of conscience clause laws was on permitting health
care providers to refuse to participate in abortion or sterilization procedures on
religious or moral grounds.
In 1973, Congress passed the first conscience clause law, commonly referred to
as the Church Amendment,2 in response to the U.S. Supreme Court’s decision in Roe
v. Wade and a U.S. district court decision that enjoined a Catholic hospital from
prohibiting a physician from performing a sterilization procedure at the facility.3
During consideration of the Church Amendment, Senator Frank Church explained
the need for the conscience clause, stating, “It clears up any ambiguity in the present
law by making it explicitly clear that it is not the intention of Congress to mandate
religious hospitals to perform operations that are contrary to deeply held religious4
The Church Amendment provides that individuals or entities that receive grants,
contracts, loans, or loan guarantees under the Public Health Service Act (PHSA), the
Community Mental Health Centers Act, or the Developmental Disabilities Services
and Facilities Construction Act may not be required to perform abortions or
sterilization procedures or make facilities or personnel available for the performance
of such procedures if such performance “would be contrary to [the individual or
1 Katherine A. White, Crisis of Conscience: Reconciling Religious Health Care Providers’
Beliefs and Patients’ Rights, 51 Stan. L. Rev. 1703, 1703 (1999).
2 P.L. 93-45, § 401(b), (c), 87 Stat. 91 (1973). Additional conscience provisions
supplemented the Church Amendment in 1974 and 1979. See P.L. 93-348, § 214(b), 88 Stat.
3 See 119 Cong. Rec. 9,595 (1973) (statement of Sen. Church).
4 Id. at 9,600.
entity’s] religious beliefs or moral convictions.”5 The Church Amendment also
prohibits entities that receive federal funds under the specified statutes or under a
biomedical or behavioral research program administered by the Department of Health
and Human Services (HHS) from engaging in employment discrimination against
doctors or other medical personnel who either perform abortions or sterilization
procedures or who refuse to perform such services on moral or religious grounds.6
By 1978, five years after the Court’s decision in Roe, virtually all of the states
had enacted conscience clause legislation in one form or another.7 From 1978 to
1996, there was a lull in conscience clause activity, with one exception. When
Congress enacted the Civil Rights Restoration Act in 1988, it adopted the Danforth
Amendment, which mandates neutrality with respect to abortion.8 Specifically, the
amendment clarifies that Title IX of the Education Amendments of 1972, which
prohibits sex discrimination in federally funded education programs, may not be
construed to prohibit or require any individual or entity to provide or pay for
abortion-related services, nor may it be construed to permit the imposition of a
penalty on any person who has sought or received abortion-related services.9
Nearly a decade after the Danforth Amendment, Congress passed additional
conscience provisions in the Omnibus Consolidated Rescissions and Appropriations
Act of 1996.10 Under the act, which added Section 245 to the PHSA, the federal
government and state and local governments are prohibited from discriminating
against health care entities that refuse to undergo abortion training, provide such
training, perform abortions, or provide referrals for the relevant training or for
abortions.11 Section 245 protects doctors, medical students, and health training
programs from being denied federal financial assistance or a license or certification
that they would otherwise receive but for their refusal to provide abortion services
One year after passing the 1996 omnibus legislation, Congress again revisited
the abortion conscience clause issue when it approved the Balanced Budget Act of
1997.13 Concerned that managed care plans might seek to prevent doctors from
informing patients about medical services not covered by their health plans, Congress
5 42 U.S.C. § 300a-7(b).
6 42 U.S.C. § 300a-7(c).
7 Rachel Benson Gold, Guttmacher Institute, Conscience Makes a Comeback in the Age of
Managed Care (Feb. 1998), [http://www.guttmacher.org/pubs/tgr/01/1/gr010101.html].
8 P.L. 100-259, § 3(b), 102 Stat. 28, 29 (1988).
9 20 U.S.C. § 1688.
10 P.L. 104-134, 110 Stat. 1321 (1996).
11 42 U.S.C. § 238n(a)(1).
12 42 U.S.C. § 238n(b)(1).
13 P.L. 105-33, 111 Stat. 251 (1997). The Medicare conscience clause provision is codified,
as amended, at 42 U.S.C. § 1395w-22(j)(3)(B). The identical Medicaid conscience clause
provision is codified, as amended, at 42 U.S.C. § 1396u-2(b)(3)(B).
amended the federal Medicare and Medicaid programs to prohibit managed care
plans from restricting the ability of health care professionals to discuss the full range
of treatment options with their patients.14 The legislation, however, simultaneously
exempted managed care providers under these programs from the requirement to
provide, reimburse for, or provide coverage of a counseling or referral service if the
managed care plan objects to the service on moral or religious grounds. Thus, a
Medicare and Medicaid managed care plan cannot prevent providers from providing
abortion counseling or referral services, but it can refuse to pay providers for
providing such information, although the plan must notify new and existing enrollees
of such a policy if it does indeed have one.15
The effect of the 1997 legislation was to extend the coverage of conscience
clause laws beyond the individuals who provide medical care to the companies that
pay for such care under the Medicare and Medicaid programs. The law allows
Medicare and Medicaid-funded health plans to refuse to provide counseling and
referral for abortion-related services. Earlier conscience clause laws permitted
providers to opt out only of the actual provision of such services.16
The 1997 legislation would appear to have a broader impact than the 1973
Church Amendment, both in terms of its effect on the entities that may refuse to
provide abortion services and on the individuals who wish to access such services.
In a similar vein, recent abortion bills introduced in Congress have proposed changes
that would expand the scope of current conscience clause laws. This legislation is
discussed in the next section.
Recent Legislation and its Effect on Existing Law
The Abortion Non-Discrimination Act (ANDA) has been introduced in every
Congress since the 107th Congress.17 In general, ANDA would amend the
nondiscrimination provision in the PHSA to expand the definition of the term “health
care entity” to include hospitals, provider-sponsored organizations, health
maintenance organizations (HMOs), health insurance plans, or any other kind of
health care facility, organization, or plan.
Supporters of ANDA maintain that expanding the definition of “health care
entity” is necessary because some state legislatures and courts have weakened
existing conscience clause protections, which proponents view as critical to shielding
religious hospitals and other medical providers that oppose abortion. Opponents
contend, however, that ANDA would impose serious restrictions on a woman’s
14 42 U.S.C. § 1395w-22(j)(3)(A); 42 U.S.C. 1396u-2(b)(3)(A).
15 42 U.S.C. § 1395w-22(j)(3)(B); 42 U.S.C. 1396u-2(b)(3)(B).
16 Despite the new exemptions regarding the provision of counseling and referral or
abortion-related services, programs funded by Medicaid are nevertheless required to provide
family planning services to their clients, either directly or through referral and payment to
other providers. 42 U.S.C. § 1396d(a)(4)(C).
17 S. 350, 110th Cong. (2007); S. 1983, 109th Cong (2005); H.R. 3664, 108th Cong. (2003);
S. 1397, 108th Cong. (2003); H.R. 4691, 107th Cong (2002); S. 2008, 107th Cong. (2002).
access to abortion. Critics also argue that ANDA would allow providers to drop
abortion coverage not only for moral or religious reasons, but also for financial
reasons, such as the desire to save money by reducing coverage.18
Although ANDA has not been considered by recent Congresses, conscience
clause provisions with similar language were inserted in the FY2005, FY2006, and
FY2008 appropriations measures for the Departments of Labor, HHS, and
Education.19 These provisions are commonly referred to as the Weldon Amendment
because they were added to the FY2005 appropriations measure following the
adoption of an amendment offered by Representative Dave Weldon. The language
used in the appropriations measures has remained the same since 2004. The
None of the funds made available in this act may be made available to a Federal
agency or program, or to a State or local government, if such agency, program,
or government subjects any institutional or individual health care entity to
discrimination on the basis that the health care entity does not provide, pay for,20
provide coverage of, or refer for abortions.
The Weldon Amendment defines the term “health care entity” to include “an
individual physician or other health care professional, a hospital, a provider-
sponsored organization, a health maintenance organization, a health insurance plan,
or any other kind of health care facility, organization, or plan.”21
The Weldon Amendment prevents the federal government and state and local
governments from enacting policies that require health care entities to provide or pay
for certain abortion-related services. In addition, the Weldon Amendment increases
both the number and type of health care providers and professionals who could refuse
to provide abortion training or services without reprisals. For example, prior law
protected only individual doctors or medical training programs that did not provide
abortions or abortion training, and appeared to apply primarily in the medical
education setting or to doctors in their individual practices. In contrast, the
appropriations provisions allow large health insurance companies and HMOs to
refuse to provide coverage or pay for abortions. Because an HMO’s refusal to
provide abortion-related services would affect a much larger number of patients than
an individual doctor’s refusal to provide such services, the Weldon Amendment has
18 Reuters, House Votes Hospitals May Avoid Abortions, N.Y. Times, September 25, 2002,
19 See P.L. 108-447, div. F, § 508(d), 118 Stat. 2809, 3163 (2004); P.L. 109-149, § 508(d),
Appropriations for FY2007 were provided pursuant to H.J. Res 20, the Revised Continuingth
Appropriations Resolution, 2007, 110 Cong. (2007), and were subject to the same
conditions that applied to FY2006 funds.
20 P.L. 108-447, div. F, § 508(d)(1), 118 Stat. 2809, 3163 (2004); P.L. 109-149, § 508(d)(1),
21 P.L. 108-447, div. F, § 508(d)(2), 118 Stat. 2809, 3163 (2004); P.L. 109-149, § 508(d)(2),
the potential of denying abortion-related services to a significantly expanded number
Although the Weldon Amendment language is similar to the proposed ANDA,
it differs in two important respects. First, ANDA would deny all federal funds to
entities that engage in abortion-related discrimination. The Weldon Amendment,
however, denies only those funds available under the annual Labor, HHS, and
Education appropriations measure. Second, the passage of ANDA would result in
permanent legislation, while the Weldon Amendment language remains in effect for
only the relevant fiscal years. Thus, although the Weldon Amendment expands prior
law, it provides for smaller penalties and is temporary in nature.
Proposed Conscience Regulations
On August 26, 2008, HHS published a proposed rule to implement the Church
Amendment, Section 245 of the PHSA, and the Weldon Amendment. HHS indicates
that new regulations are needed because the “public and many health care providers
are largely uninformed of the protections afforded to individuals and institutions”
under the federal conscience clause laws.22 In addition, the agency maintains that the
development of a health care environment that is intolerant of certain religious beliefs
and cultural traditions “may discourage individuals from diverse backgrounds from
entering health care professions.”23
The proposed regulations identify requirements and prohibitions for recipients
of HHS funds. While these provisions are in many ways a reiteration of the statutory
requirements and prohibitions, some argue that they would expand the reach of the
conscience clause laws and possibly jeopardize the health of individuals by making
it more difficult to obtain health care services and information.24 These concerns
would appear to be highlighted by some of the new definitions proposed by HHS for
relevant terms. For example, the definitions for the terms “Health Service/Health
Service Program” and “Assist in the Performance” seem to be broad enough to
encompass a variety of activities. Such breadth could result in increased
opportunities to refuse participation in the delivery of care or information.
The term “Health Service/Health Service Program” would be defined to include
“any plan or program that provides health benefits, whether directly, through
22 Ensuring That Department of Health and Human Services Funds Do Not Support Coercive
or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 50,274,
50,276 (Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88) (hereinafter referred to as
24 See, e.g., Comments from Am. Civ. Liberties Union to U.S. Dept. of Health and Hum.
Services 3 (Sept. 25, 2008), available at [http://www.aclu.org/images/
asset_upload_file467_36942.pdf] (“[T]he expansion of the refusal statutes and the confusion
caused by the Proposed Rule comes at the expense of the public’s health, particularly the
health of low-income women.”).
insurance, or otherwise, which is funded, in whole or in part, by [HHS].”25 In the
background section of the proposed rule, HHS indicates that it would construe the
Building on this broad definition, we propose that the term ‘health service
program’ should be understood to include an activity related in any way to
providing medicine, health care, or any other service related to health or
wellness, including . . . health insurance programs where federal funds are used
to provide access to health coverage (e.g., SCHIP, Medicaid, and Medicare
Advantage). Similarly we propose that the term ‘health service’ means any26
service so provided.
A broad understanding of the term could possibly lead to more individuals declining
to provide health services or perform part of a health service program.
Under the proposed 45 C.F.R. § 88.4(d)(1), any entity that carries out any part
of any health service program funded in whole or in part under a program
administered by HHS could not require any individual to perform or assist in the
performance of any part of the health service program if such service or activity27
would be contrary to his religious beliefs or moral convictions. If the term “health
service” is understood to include activities related in any way to providing medicine,28
it seems possible that the distribution of oral contraceptives could be affected.
Chain and independent pharmacies are, in fact, identified by HHS as entities that29
would be subject to the agency’s proposed certification requirements.
The term “Assist in the Performance” would be defined by the proposed
regulations to mean “to participate in any activity with a reasonable connection to a
procedure, health service or health service program, or research activity, so long as
25 Conscience Regulations at 50,282.
26 Id. at 50,278.
27 Id. at 50,283.
28 If a final rule is promulgated with few changes to the definition of the term “Health
Service/Health Service Program,” it may be necessary for a court to determine ultimately
whether the definition encompasses the distribution of contraceptives. Although Michael
O. Leavitt, the Secretary of HHS, has not discussed specifically the term “Health
Service/Health Service Program,” he has been reported as stating that some medical
providers may want to “press the definition” and argue that some contraceptives are
tantamount to abortion. See Stephanie Simon, Rules Let Health Workers Deny Abortions
— Regulation’s Effect on Contraception Remains Unclear, Wall St. J., Aug. 22, 2008, at
29 Conscience Regulations at 50,284. Under the proposed regulations, recipients and sub-
recipients of HHS funds would be required to certify that they will not discriminate on the
basis of past involvement in, or refusal to assist in the performance of an abortion or
sterilization, and will not require involvement in procedures that violate an individual’s
conscience as part of any health service program in accord with all applicable sections of
the individual involved is a part of the workforce of a Department-funded entity.”30
In the background section of the proposed rule, HHS indicates that it “proposes to
interpret this term broadly, as encompassing individuals who are members of the
workforce of the Department-funded entity performing the objectionable
procedure.”31 Employees who clean the instruments used in a particular procedure,
for example, would be considered by HHS to assist in the performance of that
Opponents of the proposed regulations have criticized the possible breadth of
the term “Assist in the Performance.” Some have argued that the definition could
provide conscience protections to seemingly tangential employees, such as staff
members tasked with scheduling appointments, and others involved with purchasing
and inventorying supplies.33 While the use of the word “reasonable” in the definition
for “Assist in the Performance” would seem to suggest a common sense approach to
determining who would be covered within the definition, the agency’s stated
intention to interpret the term broadly could, in fact, provide such employees with
The comment period for the proposed rule ended on September 25, 2008. It
appears that at least 2,074 comments were received by HHS prior to the end of the
comment period.34 The agency is expected to review the comments and make a
decision about whether to issue a final rule.
30 Id. at 50,282.
31 Id. at 50,277.
33 See Comments from Guttmacher Inst. to U.S. Dept. of Health and Hum. Services 4 (Sept.
34 Information on the comments received by HHS is available at
[ h t t p : / / www.r e gu l a t i ons.gov/ f dmspubl i c / c omponent/main?ma in=Docke tDetail&d=HHS-
OS-2008-0011]. Additional concerns about the proposed regulations, including the possible
conflict between the regulations and the provision of family planning services under Title
X of the Public Health Service Act, have been expressed in the comments.