and religious conscience, we have to put action behind our words. We can't be like Cromwell. Wasn't it Cromwell who said he would respect the religious liberty, but if anyone tried to celebrate the mass, he would burn them at the stake? We see echoes of that in some of the statements by people who are trying to force others to perform abortions against their conscience: "Oh, I respect your right of conscience, but you had better perform an abortion or if not, you will be fired or you will lose your license, you will lose your certificate of authority."

It is ironic that this bill comes at this time before this committee, because I believe this committee has been recently testimony about scandals that resulted when conscience was anesthetized in business practices. And we have seen a call by our President for a revival and renewal of conscience. And yet at the same time, witnesses are asking this committee to not pass a law to protect the rights of conscience in the health care field? I think that it is extremely ironic and would be a tragedy.

Mr. BILIRAKIS. Please summarize, sir.

Mr. WARDLE. I urge this committee to enact the Abortion NonDiscrimination Act. Thank you.

[The prepared statement of Lynn Wardle follows:]

PREPARED STATEMENT OF LYNN D. WARDLE,1 J. REUBEN CLARK LAW SCHOOL,

BRIGHAM YOUNG UNIVERSITY

I. INTRODUCTION

Today a growing number of health care practices, procedures, and medications present serious moral concerns for many health care providers. Recent medical and pharmacological developments increasingly put health care entities at the vortex of some of society's most controversial moral dilemmas. These include issues relating to providing, performing, participating in or facilitating as abortion (both by traditional surgical methods and also by chemical methods such as the "Morning After Pill"), human cloning, embryonic stem cell techniques, genetic engineering including sex preselection, DNA screening for genetic disorders, sterilization, contraception, sex-change, euthanasia, assisted suicide, and capital punishment by lethal injection, to name just a few medically-related practices with profound moral implications. Increasingly there is pressure upon health care providers, both individuals and organizations (such as clinics, hospitals, practice groups, and insurers) to put aside personal moral beliefs in order to facilitate convenient access to new drugs, procedures, and technologies.

In the ordinary course of professional life, without any additional pressures, these dilemmas arise often enough to create crises for tens of thousands of health care entities. However, in addition to these dilemmas there is increasing pressures upon health care participants to facilitate or provide products or services which violate their own consciences. Advocates of particular procedures and programs, particularly major providers of promoters of abortion are systematically singling out health care providers and entities to squeeze and compel them to abandon their moral values as the price to pay to remain in the profession and market.

1 Professor of Law, J. Reuben Clark Law School. I engaged in scholarly research and writing about these issues for over two decades, and teach a law school Seminar on Biomedical Ethics and Law. See Lynn D. Wardle, The Quandary of Pro-life Free Speech: A Lesson from the Abolitionists, 62 ALBANY L. REV. 853-966 (1999); Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. LEGAL MEDICINE 177-230 (1993); Lynn D. Wardle, A Matter of Conscience: Legal Protection for the Rights of Conscience of Health Care Providers, 2 CAMBRIDGE Q OF HEALTH CARE ETHICS 529-42 (1993). I express appreciation to my research assistant, William J. Perkins, especially for updating the summary of state laws protecting conscience, and to Maureen Kramlich, for their assistance in providing material that helped in preparing this Statement. Of course, the opinions expressed herein are my own professional opinions and I do not speak for or represent any other person or organization.

II. OVERVIEW OF THE DEVELOPMENT OF THE CRISIS OF CONSCIENCE

I have closely studied abortion law and policy in the United States for thirty years, and have seen the transformation. Initially, advocates of permissive abortion argued that they merely desired to give women the private choice to select abortion. They asserted that they did not intend to force anyone to do anything, but only sought to repeal laws that prohibited one option-abortion-that they believed should be available to pregnant women.

However, after that goal was achieved by judicial decree,2 it was not long before they demanded that public funds be available, that public hospitals should be forced to provide the service which they considered so desirable. In a series of cases, they repeatedly tried to get the Supreme Court to interpret the Constitution so as to invalidate laws that restricted public funding and provision of abortion in public hospitals. Fortunately, the U.S. Supreme Court turned them down every time. Sadly, a number of state courts have not been so fair, and have accepted these zealots' demands that the state constitutions be interpreted to judicially mandate public funding of abortion.4

Then they tried to stop citizens who wished to exercise their right to peacefully assemble in opposition to abortion, and to punish individuals who tried to offer free, peaceful "sidewalk counseling" to pregnant women to advise them about alternatives to abortion. While the Supreme Court has invalidated many (but not all) of such laws and decrees,5 the effort to suppress pro-life free speech continues, led ironically by the same organizations that championed "the right to choose."6

Just a few years ago, they attempted to enact regulations for accrediting medical schools and teaching hospitals to force medical students and young doctors to be trained to perform abortions. Congress had to step forward and pass a law to prevent that coercion and to protect the rights of conscience of medical students, doctors and hospitals.7

Recently, there have been a series of attempts to compel hospitals, health care groups, and other hare care organizations to either provide abortion services or to be denied the license, permission or opportunity to engage in the health care service. Also, there have been attempts to mandate that health care insurers and private employers provide coverage and pay for abortion services.

The Supreme Court has declared that the Constitution protects private choice of abortion against state prohibition. The Court has emphasized that it does not compel public assistance, support or facilitation of abortion. 10 The decisions can be read as neutrality decisions-the state must not use its power to coerce a decision one way or another regarding childbirth or abortion. The government may prefer, persuade, encourage, and promote one way or the other, but it may not compel.

The private choice to decline to participate in abortion deserves no less protection than the choice to participate in abortion.

Yet zealous abortion activists continue to try to use the powers of government to compel participation in and payment for and coverage of abortion. Specifically, they try to compel hospitals, clinics, provider groups, and health care insurers to provide facilities for, personnel for, and funding for abortion.

2 Roe v. Wade, 410 U.S. 113 (1973).

3 See Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977); Poelker v. Doe, 432 U.S. 519 (1977); Harris v. McRae, 448 U.S. 297 (1980); Williams v. Zbaraz, 448 U.S. 358 (1980); Rust v. Sullivan, 500 U.S. 173 (1991).

4 See, e.g., Alaska v. Planned Parenthood, 28 P.3d 904 (Alaska 2001); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998); Women of Minn. v. Gomez, 542 N.W.2d 17 (Minn. 1995); Moe v. Sec'y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981); Comm. to Defend Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981).

5 See, eg, Frisby v. Schultz, 487 U.S. 474 (1988); Bray v. Alexandria Women's Health Clinic, 508 U.S. 263 (1993); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994); Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997); Hill v. Colorado, 120 S.Ct. 2480 (June 28, 2000). "Lynn D. Wardle, The Quandary of Pro-life Free Speech: A Lesson from the Abolitionists, 62 ALBANY L. REV. 853-966 (1999).

742 U.S.C. § 238n.

8 See generally Valley Hosp. Ass'n v. Mat-su Coalition for Choice, 948 P.2d 963, 965 (Alaska 1997); See also Doe v. Bridgeton Me'l Hosp. Ass'n, 366 A.2d 641 (N.J. 1976).

9 See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992); see also Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977); Poelker v. Doe, 432 U.S. 519 (1977).

10 See supra, note 6.

III. EXAMPLES OF ABUSES OF RIGHTS OF CONSCIENCE

In repeated cases, pro-abortion extremists are trying (successfully in many cases) to assert the position that a health care entity who will not perform abortions must be denied access to the public market. For instance, currently there is a battle in New Jersey in which pro-abortion zealots are trying to stop the merger of a secular hospital with a religious hospital group because that will result in the hospital not performing abortions.11 Rather than helping some abortion clinic in the area to expand or operate more actively in the area, the pro-abortion zealots are taking the position that a hospital who does not perform abortion must be disqualified from participating in the health care profession.

In recent years, there have been a number of incidents involving apparent violations of the rights of conscience of health care workers in the United States. Well known is the attempt by the ACGME to require all Ob/Gyn residents in all Ob/Gyn programs be trained to perform abortions. 12 During the 1999 California legislative session, a bill was introduced that would have, among other things, disallowed hospitals that decline to participate in abortion from receiving public financing or statefunded health care contracts.13 In Connecticut, after abortion rights activists learned that an outpatient surgical center proposed by four hospitals would not perform abortion and sterilizations, they formed a coalition to defeat the proposed center and intervened in Certificate of Need proceedings and the Connecticut Office of Health Care Access refused to issue a certificate. 14 Incidents in which hospital mergers to help struggling hospitals survive have occurred in New Hampshire, Florida, and New York, as well. 15 I cite just a few headlines from the Protection of Conscience website: "Nurse Refused Employment, Forced to Resign" (she refused to participate in abortions); "Worker fired for refusing payment for illegal abortion (refused to sign for welfare payment for abortion); "Hospital Aide Fired for Refusing to Clean Abortion Instruments"; "Kmart Pharmacist Fired for Refusing to Dispense Abortifacient" (other workers had done it for her); "Student pressured to participate in abortion" (in Saskatchewan, Canada, 1999); "Foothills Hospital Now Forces Nurses To Participate In Genetic Terminations" (nurses angry about being forced to participate in abortion of imperfect and late term babies); and “More DC Medics Say They Were Forced to Have Abortions." 16 Michael Bloomberg, the new Mayor of New York, now compels abortion training as an "additional required component to OB/GYN residency programs in all New York City city-owned hospitals. The training is outlined in Michael Bloomberg's Blueprint for Public Health along with a proposal requiring victims of sexual assault to be given emergency contraception when taken to emergency rooms. Previously, only 2 out of the 11 public hospitals include abortion as part of their training. The training will teach OB/GYNs how to perform abortions and provide counseling." 17 News reports say that Bloomberg's plan "allows residents who object to abortion on moral grounds to forego the training.' "18 But what pro-abortion politicians consider an appropriate exemption for rights of conscience often turns out to be mere eye wash, narrow, ineffective and cynical. "[T]he media mogul . . . reportedly once told a pregnant employee to "Kill

11 Beth E. Fand, Hospital focus of reproductive rights battle, The Burlington County Times (NJ), July 9, 2002, <http://www.nj.com/news/times/burlington/index.ssf?/base/news-0/1026208 80525536.xml> (viewed July 9, 2002).

12 AAPLOG website, <http://www.aaplog.org>.

13 A.B. 525, 1999-2000 Leg., Reg. Sess. (Ca. 1999).

14 State of Connecticut Office of Health Care Access Applicants: Roy D. Bebe, M.D., Harford Hospital, John Dempsey Hospital, New Britain General Hospital, Saint Francis Hospital and Medical Center, ASC Network Corporation Docket Number 96-547 ("Establish and Operate a Freestanding Ambulatory Surgery Center in Avon") and Applicant Saint Francis Hospital and Medical Center Docket Number 96-537 ("Establish and Operate a Freestanding Ambulatory Care Center in Avon") letters denying applications dated September 29, 1997, signed by Raymond J. Gorman, Commissioner.

15 N.H. Att'y. Gen. Rep. on Optima Health, March 10, 1998. City of St. Petersburg v. Bayfront Medical Center, Inc., Bayfront Health System, Inc. and Baycare Health System, Inc. Case No. 8:00-CV-623-27A ( M.D. Fla.)-Middle District of Florida Tampa Division Proposed Final Order-approved by City Council on April 10, 2001S. 333, 2001-2002 Reg. Sess. (Ny. 2001) (requiring insurance coverage for "certain women's reproductive health services," by hmos, including abortion); A. 2674, 2001-2002 Reg. Sess. (Ny. 2001) (requires review of changes in hospital mission statement); A. 4397, 2001-2002 Reg. Sess. (Ny. 2001) (public health council to find that "health care needs" will continue to be met after a merger ).

16 Protection of Conscience Project, http://www.consciencelaws.rg/Repression-Conscience. html> (7 Nov. 2001).

17 Nikki Katz, Bloomberg Requiring Additional Abortion Training, About Women's Issues <http://womensissues.about.com/library/weekly/aa011002a.htm> (seen 29 Jan 2002); NYC Mayor to Mandate Abortion Training for Docs, Village Voice, Jan. 8, 2002.

18 Id.

it! Kill it!" (The comment, which Bloomberg has denied making, was cited in the legal papers of Sekiko Sakai Garrison, a former Bloomberg News staffer who brought one of three publicized sex-harassment cases against him or his company.)" 19

These examples reveal only the tip of the iceberg. A landmark empirical study of, inter alia, nurses attitudes about and difficulties encountered because of personal objection to abortion and other medical procedures in the 1980s revealed that approximately 5% of the nurses sampled (which extrapolated out would amount to approximately 50,000 nurses in the United States) perceived that their assignment and promotion opportunities may be limited by their moral and religious beliefs about abortion.20 The nurses in this sample "identified a total of 103 definite cases in which nurses had either been dismissed or had their opportunities limited because of moral beliefs... [F]ifty-seven cases were identified in which the nurses beliefs about abortion had cost them opportunities for promotion or sustained employment." "21 Moreover,

[a]pproximately 7% of Catholic nurses, 4% of Protestant nurses, and 6% of those belonging to 'other' religions indicated they knew at least one other person whose opportunities with hospitals had been limited by personal beliefs... Thirty-six nurses [in the national sample] identified a total of 118 of their colleagues who had been limited as a result of their moral and religious beliefs.22

IV. EXISTING CONSCIENCE CLAUSE PROTECTION LAWS

These incidents attempt to circumvent existing laws enacted by Congress and 49 states enacted to provide some protection for the rights of conscience of health care workers in at least some situations.23 The laws, called "conscience clauses" generally are drafted to protect the right of health care professional to refuse to participate in providing a service or procedure to which they have religious or other moral objections. Conscience clauses have been enacted by both federal and state law makers. Sadly, many of these laws are outdate, addressing concerns that are nearly 30 years old, but not address the more recent threats to rights of conscience. Conscience clauses can be traced to a specific judicial decision that provoked a firestorm of controversy. In November 1972 a United States District Court in Billings, Montana issued an injunction forbidding a Catholic hospital to deny the use of its facilities to a physician who wanted to perform a sterilization on a patient there.24 The suit to enjoin the hospital was brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, which provide redress for deprivation of civil rights under color of state law. The district court ruled that the fact that the hospital had received public funds under the federal Hill-Burton Act was alone sufficient to make the hospital a "state actor" for purposes of those civil rights statutes. The next year, in direct response to that ruling, and just months after the Supreme Court's decision in Roe v. Wade,25 Congress passed the Church Amendment, the original federal conscience clause, 42 U.S.C. § 300a-7, which was designed to prohibit a court or a public official from using receipt of federal grants or assistance under three specific acts, 26 as a basis for requiring any individual or institution to perform or assist in performing abor

22 Id. at 258. Again, extrapolated over the entire nursing profession this would represent approximately tens of thousands of nurses who have been the victim of employment discrimination because of their religious or moral beliefs. Id. at 258.

23 There is some inconsistency in the reports on the number of states with some conscience clause protection. Seven years ago, I identified 44 states with such laws and six without any. Americans United for Life, which does very reliable work, that 46 states now have conscience clauses. See further Katherine A. White, Note, Crisis of Conscience: Reconciling Religious Health Care Providers' Beliefs and Patients' Rights, 51 Stan. L. Rev. 17031707 n. 18 (1999), citing Rachel Benson Gold, Special Analysis: Provider Conscience' Questions Re-emerge in Wake of Managed Care's Expansion, in State Reproductive Health Monitor 18 (1997). AUL identifies the four states without any protection of rights of conscience as Alabama, Mississippi, New Hampshire and Vermont. With the aid of a very good research assistant, Brittany Howick, however, I have found that Mississippi and New Hampshire each have a law protecting the rights of conscience in the context of living wills or end of life directives made for a patient by another. Thus, it appeals that all states except Alabama and Vermont have some statutory protection for some rights of conscience of some health care providers in at least some cases.

24 See Taylor v. St. Vincent's Hospital, 369 F.Supp. 948, 950 (D.C.Mont., 1973) (quoting H.R. No. 93-227; 1973 U.S.Code Cong. & Admin.News p. 1553), aff'd 523 F.2d 75 (9th Cir. 1975). 25 410 U.S. 113 (1973).

26 The three acts are: The Public Health Service Act, the Community Mental Health Centers Act, and the Developmental Disabilities Services and Facilities Construction Act.

tions or sterilizations, if such would be contrary to religious or moral beliefs.27 Because of the Supreme Court decision in Roe effectively required all states to legalize nontherapeutic abortion on demand, the conscience clause movement became immediately relevant, and most states enacted conscience clauses to protect the right of at least some health care providers to refuse to perform or participate in abortions. The Church Amendment is still the main federal protection for the rights of conscience of health care providers. Additionally, Title VII of the Civil Rights Act requires employers generally to accommodate the religious beliefs of their employees that do not cause undue hardship.28

Also, in 1997 Congressional "amendments extend[ed] conscience protections to cover Medicaid and Medicare managed care plans, which may now refuse to 'provide, reimburse for, or provide coverage of a counseling or referral service if the...organization offering the plan...objects to the provision of such service on moral or religious grounds..." "29

Forty-nine states provide at least some protection for rights of conscience of some health care providers in some circumstances.30 (Only Vermont has no statutory protection for rights of conscience whatever.) However, only one state, Illinois, has a comprehensive conscience protection law that covers all health care providers, institutions, and payers and applies to all health care services. One other state, Washington, protects the right of conscience to refuse to participate in any health care services and covers all individuals but only religiously-affiliated institutions. Abortion is the focus of most conscience clauses. Forty-five states allow some health care workers to refuse to participate in abortions. Twenty-five states' conscience clauses cover only abortion. Ten states allow health care workers to exercise their right of conscience to not participate in abortion only if working for individuals or private institutions. Two states conscience protection laws cover abortion but apply only when the health care provider is an individual, and one other state has a similar restriction covering sterilization also. Four states cover specifically abortion and contraception. One state covers health care providers regarding abortion, sterilization and artificial insemination, and another covers only abortion, abortifacients, and sterilization. At least three states (California, Mississippi and New Hampshire, and I suspect more but have not done the research) protect a right of health workers to decline to participate in some end-of-life decision implementations in limited circumstances. Two states cover counselors and social workers in some contexts. One state protects the right of pharmacists to not participate in abortion, assisted suicide and euthanasia. Eleven states protect the rights of conscience of medical and nursing students in some situations. Only nine of the sixteen states that mandate health insurance plans to include contraceptive drugs or devices if prescription drugs are covered contain any conscience clause provisions (usually limited to religious employers).

Existing conscience clause laws are inadequate as drafted for at least five major reasons. First, most are very narrow in terms of the practices, procedures or contexts in which they apply-most were drafted with abortion and sterilization in mind and go no further. Second, many of them are very narrow and restrictive, covering only a small group of health care providers, not workers in the health care industry_generally. Third, the scope of protection (the discrimination forbidden) is limited. Fourth, the remedies and procedures for vindicating the rights are undeveloped and restricted. Fifth, most of the laws are outdated, having been written before many of the medical developments occurred that have created some of the most difficult moral dilemmas.

V. HOSTILE INTERPRETATIONS

In addition to the deficiencies of drafting, there are problems of interpretation. Judicial interpretation of these statutes has been very grudging, even hostile. In contrast to how civil rights laws in general have been construed during the past thirty years, conscience clauses have received very cold, unsympathetic, unsupportive reception by state and federal judges. Judges have given narrow, hostile interpretation regarding procedures covered, persons covered, protections provided, and have casually circumvented the laws by invoking other laws.

27 1973 U.S. Code Cong. & Admin. News 1473, 1553. 28 42 U.S.C. § 2000.

29 Katherine A. White, Note, Crisis of Conscience: Reconciling Religious Health Care Providers' Beliefs and Patients' Rights, 51 Stan. L. Rev. 1703, 1708 (1999), citing Balanced Budget Act of 1997, Pub. L. No. 105-33, tit. IV, § 1852(j)(3)(B), 111 Stat. 251, 295.

30 Current State Statutes, January 2002, in Americans United for Life, Health Care Rights of Conscience Act, Model Legislation and Policy Guide, January 2002 (herein "AUL Rights of Conscience Act").