[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 301 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                 S. 301

    To amend the Public Health Service Act to prohibit governmental 
   discrimination against providers of health services that are not 
                         involved in abortion.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 3, 2017

Mr. Lankford (for himself, Mr. Blunt, Mr. Lee, Mr. Cruz, Mr. Moran, Mr. 
 Isakson, Mr. Inhofe, Mr. Daines, Mr. Thune, Mr. Sasse, Mr. Risch, Mr. 
 Roberts, Mr. Cassidy, and Mrs. Ernst) 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 providers of health services that are not 
                         involved in abortion.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Conscience Protection Act of 2017''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (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 2-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).
            (9) Reaffirming longstanding Federal policy on conscience 
        rights and providing a right of action in cases where it is 
        violated allows longstanding and widely supported Federal laws 
        to work as intended.

SEC. 3. PROHIBITING GOVERNMENTAL DISCRIMINATION AGAINST PROVIDERS OF 
              HEALTH SERVICES THAT ARE NOT INVOLVED IN ABORTION.

    Title II of the Public Health Service Act (42 U.S.C. 202 et seq.) 
is amended by inserting after section 245 the following:

``SEC. 245A. PROHIBITING GOVERNMENTAL DISCRIMINATION AGAINST PROVIDERS 
              OF HEALTH SERVICES THAT ARE NOT INVOLVED IN ABORTION.

    ``(a) In General.--Notwithstanding any other law, the Federal 
Government, and any State or local government that receives Federal 
financial assistance, may not penalize, retaliate against, or otherwise 
discriminate against a health care provider on the basis that the 
provider does not--
            ``(1) perform, refer for, pay for, or otherwise participate 
        in abortion;
            ``(2) provide or sponsor abortion coverage; or
            ``(3) facilitate or make arrangements for any of the 
        activities specified in this subsection.
    ``(b) Rule of Construction.--Nothing in this section shall be 
construed--
            ``(1) to prevent any health care provider from voluntarily 
        electing to participate in abortions or abortion referrals;
            ``(2) to prevent any health care provider from voluntarily 
        electing to provide or sponsor abortion coverage or health 
        benefits coverage that includes abortion;
            ``(3) to prevent an accrediting agency, the Federal 
        Government, or a State or local government from establishing 
        standards of medical competency applicable only to those who 
        have knowingly, voluntarily, and specifically elected to 
        perform abortions, or from enforcing contractual obligations 
        applicable only to those who, as part of such contract, 
        knowingly, voluntarily, and specifically elect to provide 
        abortions;
            ``(4) to affect, or be affected by, section 1867 of the 
        Social Security Act (42 U.S.C. 1395dd, commonly referred to as 
        the `Emergency Medical Treatment and Active Labor Act'); or
            ``(5) to supersede any law enacted by any State for the 
        purpose of regulating insurance, except as specified in 
        subsection (a).
    ``(c) Administration.--The Secretary shall designate the Director 
of the Office for Civil Rights of the Department of Health and Human 
Services--
            ``(1) to receive complaints alleging a violation of this 
        section, section 245 of this Act, or any of subsections (b) 
        through (e) of section 401 of the Health Programs Extension Act 
        of 1973; and
            ``(2) to pursue the investigation of such complaints in 
        coordination with the Attorney General.
    ``(d) Definitions.--For purposes of this section:
            ``(1) Federal financial assistance.--The term `Federal 
        financial assistance' means Federal payments to cover the cost 
        of health care services or benefits, or other Federal payments, 
        grants, or loans to promote or otherwise facilitate health-
        related activities.
            ``(2) Health care provider.--The term `health care 
        provider' means--
                    ``(A) an individual physician, nurse, or other 
                health care professional;
                    ``(B) a hospital, health system, or other health 
                care facility or organization (including a party to a 
                proposed merger or other collaborative arrangement 
                relating to health services, and an entity resulting 
                therefrom);
                    ``(C) a provider-sponsored organization, an 
                accountable care organization, or a health maintenance 
                organization;
                    ``(D) a social services provider that provides or 
                authorizes referrals for health care services;
                    ``(E) a program of training in the health 
                professions or an applicant to or participant in such a 
                program;
                    ``(F) an issuer of health insurance coverage; or
                    ``(G) a group health plan or student health plan, 
                or a sponsor or administrator thereof.
            ``(3) State or local government that receives federal 
        financial assistance.--The term `State or local government that 
        receives Federal financial assistance' includes every agency 
        and other governmental unit and subdivision of a State or local 
        government, if such State or local government, or any agency or 
        governmental unit or subdivision thereof, receives Federal 
        financial assistance.

``SEC. 245B. CIVIL ACTION FOR CERTAIN VIOLATIONS.

    ``(a) In General.--A qualified party may, in a civil action, obtain 
appropriate relief with regard to a designated violation.
    ``(b) Definitions.--For purposes of this section:
            ``(1) Qualified party.--The term `qualified party' means--
                    ``(A) the Attorney General of the United States; or
                    ``(B) any person or entity adversely affected by 
                the designated violation.
            ``(2) Designated violation.--The term `designated 
        violation' means an actual or threatened violation of--
                    ``(A) section 245 or 245A of this Act; or
                    ``(B) any of subsections (b) through (e) of section 
                401 of the Health Programs Extension Act of 1973 
                regarding an objection to abortion.
    ``(c) Administrative Remedies Not Required.--An action under this 
section may be commenced, and relief may be granted, without regard to 
whether the party commencing the action has sought or exhausted 
available administrative remedies.
    ``(d) Defendants in Actions Under This Section May Include 
Governmental Entities as Well as Others.--
            ``(1) In general.--An action under this section may be 
        maintained against, among others, a party that is a Federal or 
        State governmental entity. Relief in an action under this 
        section may include money damages even if the defendant is such 
        a governmental entity.
            ``(2) Definition.--For the purposes of this subsection, the 
        term `State governmental entity' means a State, a local 
        government within a State, and any agency or other governmental 
        unit or subdivision of a State or of such a local government.
    ``(e) Nature of Relief.--In an action under this section, the court 
shall grant--
            ``(1) all necessary equitable and legal relief, including, 
        where appropriate, declaratory relief and compensatory damages, 
        to prevent the occurrence, continuance, or repetition of the 
        designated violation and to compensate for losses resulting 
        from the designated violation; and
            ``(2) to a prevailing plaintiff, reasonable attorneys' fees 
        and litigation expenses as part of the costs.''.
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