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Summary of State Laws Protecting Rights of Conscience-July 8, 2002—Continued

Montana Mont. Code Anno., $ 50-20-111 (2001) No private hospital need provide abortion. All persons have the

right to refuse or participate in an abortion. Person can mean individual or corporations. Mont. Code Anno. $ 50-5-502 to 505 No hospital or medical facility or persons shall have to perform

sterilization. Person has the right to injunctive relief or monetary damages. Hospital or medical facil

ity shall not loose any privileges or immunities. Nebraska Neb. Rev. Stat. ’ 28-337 No hospital in the state, public or private, must perform an abortion, but it

must inform the patient of this policy. Nevada

Nev. Rev. Stat. 632.475—Nurse or somebody providing direct assistance to a patient does not have to

assist in an abortion if it is against her morals New Hampshire RSA 137-H:6 (2002) A physician who, for conscience sake, cannot comply with a living will shall without

delay transfer the patient to another physician. New Jersey N.J. Stat. § 2A:65A-1 “No person shall be required to perform or assist in the performance of an abor

tion or sterilization." N.J. Stat. § 2A:65A-2 "No hospital or other health care facility shall be required to provide abortion or

sterilization services or procedures.

N.J. Stat. § 2A:65A-2 No civil liability for those who refuse to perform abortion or sterilization. New Mexico N.M. Stat. Ann. $ 30-5-2 (2001) No person or hospital has to participate in abortion for moral or reli

gious reasons N.M. Stat. Ann. $ 24-8-6 (2001) No hospital is required to admit a patient for sterilization if done so on

religious grounds. New York NY CLS Civ R $ 79-i (2002) No person shall be required to perform an abortion if it is against his con

science or religious beliefs. North Carolina . N.C. Gen. Stat. § 14-45.1 Physician or nurse do not have to perform abortion if it is against their reli

gious principles. A hospital or healthcare institution does not have to offer abortions. North Dakota N.D. Cent. Code, $ 23-16-14 (2002) NO hospital or person shall be required to perform an abortion.

N.D. Cent Code 14-02.4-15.1 (1997) Government may not discriminate against health care institute or

private agency for refusal to participate in any health care service that is against written religious

and moral policies. Ohio

ORC Ann. 4731.91 (Anderson 2002) No public or private hospital or person has to participate in an

abortion. Oklahoma 63 Okl. St. § 1-741 No Private hospital or person has to participate in an abortion. Oregon

Or. Rev. Stat. ' 435.485 (2001) No physician must give advice to a patient concerning abortion, but he

must advise the patient. No hospital employee is required to participate in an abortion. Or. Rev. Stat. § 435.225 (2001) “Any employee of the Department of Human Services may refuse to ac

cept the duty of offering family planning and birth control services" if it conflicts with religious prin

ciples. Pennsylvania ... 18 Pa. C. S. § 3202 (2002) Right of Conscience is protected for all person who desires to not provide an

abortion. 18 Pa. C.S. $3213. Except for a facility devoted to abortions, no facility is required to perform abortions,

and no medical personnel, employee or student is required to participate in an abortion. Civil Liability

may reach $5,000. 43 P.S. $ 955.2 (2002) No hospital or person is required to perform an abortion or sterilization. No

school can deny admission due to a person's refusal to participate in abortion or sterilization. Rhode Island R.I. Gen. Laws § 23-17-11 (2001) No person shall be required to participate in an abortion or steriliza

tion if such are objected to on moral or religious grounds. South Carolina S.C. Code Ann. § 44-41-40 (2001) No private institution is required to perform an abortion. South Dakota S.D. Codified Laws $ 34-23A-12 (2001) No person who refuses to perform an abortion shall be held lia

ble. Tennessee Tenn. Code Ann. § 39-15-204, 205 (2001) No hospital or person need provide an abortion.

Tenn. Code Ann. $ 68-34-104 No private institution or physician is required to provide contraceptive pro

cedures or supplies if refusal is based on conscientious or religious objections. Texas

Tex. Occ. Code § 103.001, 002 (2002) No physician, nurse or employee of a hospital maybe required to

participate in an abortion. Tex. Occ. Code § 103.003 (2002) A person whose rights are violated may sue the hospital, medical facil

ity or educational institution for an injunction plus affirmative relief, including reinstatement, backpay

plus 10% Tex. Occ. Code § 103.004 Hospital need not provide abortions. Tex. Ins. Code Ann. art. 204.09(m)—No, HMO, physician, or provider is required to recommend or provide

services that violate religious convictions. Utah

Utah Code Ann. § 76-7-306 (2001) No person shall be required to perform an abortion if it is against

his moral or religious beliefs. No private or denominational hospital shall be required to perform abor

tions. Virginia Va. St. § 18.2-75 A hospital, medical facility or physician do not have to perform abortion.

Summary of State Laws Protecting Rights of Conscience July 8, 2002—Continued Washington Wash. Rev. Code Ann. 70.47.160 (2002) No HMO need provide or pay for services that are religiously ob

jectionable. Wash. Rev. Code Ann. g 70.122.060 (2002). No nurse, physician, or other health care practitioner may be

required by law or contract in any circumstances to participate in the withholding or withdrawal of

life-sustaining treatment if such person objects to so doing West Virginia ... W. Va. Code g 16-2F-1 (2001)—No person need participate in and abortion if they refuse for medical

reasons or any others. W. Va. Code 8 16-2B-4 (2001) Any employee of the state may refuse the duty of providing family plan

ning services. W. Va. Code § 16-30-12 A health care facility does not need to change it policies that are grounded in

sincerely held religious convictions or moral principles.

A health care provider need not provide service that is contrary to its religious beliefs. (Living Wills etc.) Wisconsin Wis. Stat. § 253.09 (2001) No hospital or person is required to participate in abortion or sterilization. Wyoming Wyo. Stat. § 35-6-105, 106 (2001) No private hospital or institution or person need provide or participate

in abortions. (Also mentions Euthanasia, but appears to be in context of abortion.) Wyo. Stat. § 42-5-101 (2001) Any person may refuse the duty of providing family planning or birth con

trol services if done so for religious or personal beliefs.

Mr. BILIRAKIS. Thank you, Mr. Wardle. I felt compelled to introduce the legislation that we are discussing today, because the intent of the legislature has always meant an awful lot to me. And in trying to determine what was intended, I reach to these additional views signed by Senators Bill Frist, McConnell, Gregg, Hutchinson, Coats and DeWine, where they said, “We believe that the term 'health care entity,'”-and I don't know how anyone can, in my opinion, look at it logically and come to the conclusion that a health care entity could exclude a hospital. But we believe that the term, "health care entity," was intended to be read in the straightforward manner of including not only the specific entities mentioned but also those which are routinely seen as health care entities in common usage and other Federal laws, such as a hospital, provider-sponsored entity, health maintenance organization, health plan, et cetera, et cetera. So that is why I felt compelled to do this, because, as Mr. Wardle said, there is a gap there I am not sure if you used that exact word-and we have got to try to fill that gap.

Ms. Vosburgh

Mr. BILIRAKIS. [continuing] You have indicated that, if I understood you correctly, there is a provider across the street from the hospital

Mr. BILIRAKIS. [continuing] who performs-
Ms. VOSBURGH. Yes, that is abortions.
Mr. BILIRAKIS. [continuing] elective abortions.
Ms. VOSBURGH. Abortionist lamage, yes.

Mr. BILIRAKIS. So if Valley Hospital were afforded conscience protection, then it is likely that women would still have access to elective abortions, correct?

Ms. VOSBURGH. Yes, they would. In fact, she does her first term trimester abortions in her own clinic.

Mr. BILIRAKIS. In her own clinic.

Ms. VOSBURGH. She uses the hospital for second trimester abortions.

Mr. BILIRAKIS. Well, could she perform the second trimester abortions in her own clinic?

Mr. BILIRAKIS. She could not.
Ms. VOSBURGH. No. It is a State law; she has to use the hospital.
Ms. VOSBURGH. But, you know, why should we be forced to

Mr. BILIRAKIS. How many—I don't know the answer to this, and I guess it is always dangerous to ask a question you don't know the answer to—but how many hospitals are there in the valley?

Ms. VOSBURGH. Just one. Mr. BILIRAKIS. Just one. Ms. VOSBURGH. Anchorage is about 50 miles away. Mr. BILIRAKIS. About 50 miles away. Are there hospitals there where there may not be a problem regarding their conscience in terms of performing abortions?

Ms. VOSBURGH. Providence is a Catholic hospital; it will not allow abortions there either. But there is always a regional—there is the Vets Hospital, so I am not sure if she would do her second trimester abortions there. My suggestion would be to her to build her own facility if she wants to do second trimester abortions.

Mr. BILIRAKIS. Okay. Do you feel then that your experience in Alaska-you obviously feel very strongly about this point, but do you feel that that experience presents a compelling argument for clarifying Congress' original intent in providing Federal conscience protections?

Ms. VOSBURGH. Yes. I believe if this had been in place solidly, that this probably would not have happened.

Mr. BILIRAKIS. Yes. It is just unfortunate. Sometimes you can't see the forest for the trees up here, and you are just so overloaded with so many things on your plate that the intent of the Congress at the time was not played out accurately in terms of what was meant by "health care entity.”

Ms. VOSBURGH. One thing I did want to mention is the cases that I brought up here are hard cases—the rape, incest and life of the mother—which are you know, those are the ones that are tearwrenching and things. But the fact of the matter is even Planned Parenthood admits that 95 percent and more—some people say only 1 percent-are for life, incest and rape. So 95, 96, 97 percent of all abortions are for nearly birth control purposes. Why should

Mr. BILIRAKIS. Well, let us not-yes. I don't disagree with you. Let us not go into that.

Ms. VOSBURGH. All right.

Mr. BILIRAKIS. Mr. Weiss, you mention in your testimony that you oppose extending conscience clause protections to other health care entities because, using your words, "Its burdens fall primarily on those who do not share the beliefs that motivate the refusal.” Would you agree that forcing a Catholic hospital, which is based on a faith that finds abortion objectionable, and I think you would agree with that, to perform abortions would also place a burden on that entity based on a belief that this institution does not share if we are talking about placing a burden?

Ms. WEISS. Chairman, it is a matter of balancing the rights involved. The question there is what kind of institution is it? Let us just take for a minute Valley Hospital as against an institution


that I think would be entitled in many cases to exemptions from the public health laws, which would be a privately funded Christian Science Sanitorium. Valley Hospital, just by way of example, was held to be a quasi-public entity by the Alaska Supreme Court for three reasons. First, because it was built on public land, 5 acres donated by the city, with over $10 million in public funds. It operated on very significant public funds. It had been granted a certificate of need by the State through a regulatory process which gave it a health care monopoly in the valley, in return for which it promised to meet the health care needs of the valley. It is the only hospital in the valley in which second trimester procedures can be performed.

Mr. BILIRAKIS. Well, how would you feel about it if it were a Catholic hospital?

Ms. WEISS. Well, then it would depend for me on whether the Catholic hospital met these same kinds of criteria. Is it a hospital that was built with or on public land? Is it operated significantly with public dollars? Does it treat the general public? Does it employ the general public? If so, then I submit it should abide by public health laws. If not, as is the case, for example, with the Christian Science Sanitorium, built with private funds, operated with private funds, it employs Christian scientists, it serves Christian scientists, it heals exclusively through prayer, that kind of pervasively sectarian health care institution ought, in general, to be out from under public health laws that are repugnant to its beliefs, because it is serving a population of believers.

Mr. BILIRAKIS. Thank you, Ms. Weiss. My time has expired. Ms. Capps?

Ms. CAPPS. Thank you very much, Mr. Chairman. And, Ms. Weiss, I will give you a chance to continue. I want to start with the premise that I understand from colleagues who have proposed this legislation that H.R. 4691 is a small technical change in the law and give you an opportunity to agree or disagree and then expand on that.

Ms. WEISS. I think that really it is clear from the comparison of the Coats Amendment with the comparison of the chairman's bill that it is by no means a small technical change in the law. The Coats Amendment defines the term, “health care entity,” in this way. The term, “health care entity,” includes an individual physician, a post-graduate physician training program or a participant in a program of training in the health professions. The Coats Amendment was passed to address what this body, Congress, viewed as a problem with mandatory-with a professional standard that the Accreditation Council for Graduate Medical Education had issued to require residency programs either to offer or to arrange abortion training for residents.

Just to correct the record here, that professional standard at all times, when it was first promulgated and now, has provided an opt-out for any individual resident or physician who does not want to participate in abortions. It has never, by its terms, forced any doctor who had an objection personally to perform any abortion.

So this body responded to address the problem in residency programs. This new bill, as I think you know, applies not simply to fit individual physicians and residency programs but to hospitals,

health plans, HMOs, insurance companies or any other kind of health care facility, organization or plan. In other words, it applies to everybody. And instead of applying merely to the provision of abortions or referral for abortions or training in those things, it applies also to providing coverage of abortions or paying for them. So it vastly expands the kinds of entities that can have exemptions and the exemptions they can claim. That is why, for example, in the example I gave, a Medicaid managed care organization, an HMO, that participates in the Medicaid Program, could simply refuse to discuss abortion, even abortion that a woman was entitled to under Federal law.

Ms. CAPPS. And at this point, I would appreciate just a brief answer from the other three. I want to really get at the distinction between the conscience clause for an individual provider and what it means to be offering a service. And do you think taxpayer dollars should provide that service, such as a hospital, a clinic or an HMO? And maybe each of you have a chance I would like to ask if, in your mind, you see no corporate responsibility—you, for example, Ms. Vosburgh, being on the board of a hospital-no corporate responsibility to provide the services that the taxpayers have funded

you with?

Ms. VOSBURGH. It is an elective the abortions that are done there are elective, and, no, I don't see anything. The bill that is trying to be passed here would give a conscience clause out, not only to the doctors and nurses, which are already provided

Ms. CAPPS. Yes.
Ms. VOSBURGH. [continuing] but for the entities themselves.

Ms. CAPPs. But let us get at, and I will ask, Mr. Wardle, you too to answer here, if there are further distinctions that can be made. Do you believe also that an institution is the same as an individual in terms of the conscience clause? And that we who fund here take very seriously our responsibility to use taxpayer dollars wisely, that when we set out to fund the Medicaid and the various provisions that are authorized under the Constitution of this United States, that an institution has the right to opt-out of that responsibility?

Mr. WARDLE. Well, thank you, Ms. Capps, Representative Capps. I would like to respond in two ways—three ways. First, you have used the term, “corporate responsibility.” That is a wonderful term, and it ought to be on our mind, and the purpose of this bill is to protect corporate responsibility, responsibility meaning conscience, ethics, principles. Second, look at the history of the protection, the conscience clause laws in this country. The very first one that was passed was passed by Congress. It was the Church Amendment passed almost exactly 30 years ago, and it was designed to protect the rights of institutions to not have to perform abortions.

And, third, is there a difference between individuals and corporations? Yes, there is, but with respect to protecting rights of conscience, where will you draw the line? Are you going to say you, as an individual, have the right to free speech, but, oh, no, corporations cannot engage in free speech, newspapers, radio companies, television

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