[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 401 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                 S. 401

    To amend the Public Health Service Act to prohibit governmental 
discrimination against health care providers that do not participate in 
                               abortion.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 24, 2021

Mr. Lankford (for himself, Mr. Tillis, Mr. Scott of South Carolina, Mr. 
 Portman, Mr. Risch, Mr. Moran, Mr. Daines, Mrs. Fischer, Mr. Boozman, 
 Mr. Marshall, Mr. Cassidy, Mr. Cramer, Mrs. Hyde-Smith, Mr. Barrasso, 
   Mr. Thune, Mr. Hoeven, Mr. Sasse, Mr. Inhofe, Mrs. Blackburn, Mr. 
Rounds, Ms. Lummis, Mr. Hawley, Mr. Scott of Florida, Mr. Lee, and Mr. 
   Hagerty) 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 health care providers that do not participate 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 2021''.

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) Religious diversity adds to the strength of our medical 
        field, and no doctor should have to choose between giving up 
        their faith or moral convictions and abandoning a vital medical 
        mission. Congress' enactments to protect this right of 
        conscience in health care include the Church amendments (42 
        U.S.C. 300a-7), the Coats/Snowe amendment (42 U.S.C. 238n), and 
        the Weldon amendment approved by Congresses and Presidents of 
        both parties every year since 2004 (including in section 507(d) 
        of division A of the Further Consolidated Appropriations Act, 
        2020 (Public Law 116-94; 133 Stat. 2534, 2607)).
            (4) Courts have declined to find that these laws provide a 
        ``private right of action'' thereby leaving victims of 
        discrimination unable to defend their conscience rights in 
        court, while at the same time administrative enforcement by the 
        Office for Civil Rights of the Department of Health and Human 
        Services has been inconsistent, at times allowing cases to 
        languish for years without resolution.
            (5) Defying the Weldon amendment, California's Department 
        of Managed Health Care has mandated coverage for elective 
        abortions in all health plans under its jurisdiction. Other 
        States such as New York, Illinois, 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 Office for Civil Rights of the 
        Department of Health and Human Services under 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 abortion services did not 
        violate the Weldon amendment. At least 28,000 individuals and 
        families subsequently lost abortion-free health plans as a 
        result of this mandate.
            (6) On January 24, 2020, the Office for Civil Rights of the 
        Department of Health and Human Services disavowed its prior 
        findings and issued a notice of violation of the Weldon 
        amendment to California. After the State's continued 
        noncompliance with the Weldon amendment, the Centers for 
        Medicare & Medicaid Services, on December 16, 2020, announced 
        the disallowance of $200,000,000 per quarter in Federal funds 
        to California beginning in the first quarter of 2021. Unless 
        the Biden Administration provides effective and continuing 
        enforcement against California and other States, individuals 
        will continue to be coerced contrary to law into choosing 
        between violating their consciences or forgoing health care 
        coverage for themselves, their employees, or their families.
            (7) On May 21, 2019, the Secretary of Health and Human 
        Services issued a final conscience rule that implements 
        approximately 25 Federal conscience protection provisions and 
        provides mechanisms to enforce protections enacted by Congress 
        to ensure that the government and government-funded entities 
        are not unlawfully discriminating against individuals, health 
        care providers, or health care entities. Despite this 
        regulation providing for enforcement of laws passed by 
        Congress, a Federal district court vacated the rule. Now, 
        litigation is pending before the United States Court of Appeals 
        for the Second Circuit where 78 members of Congress have filed 
        a brief in support of the rule, as well as the United States 
        Court of Appeals for the Ninth Circuit. Litigation in both 
        Circuits have been halted because the Biden Administration has 
        indicated its intent to revisit the rule.
            (8) The vast majority of medical professionals do not 
        perform abortions, with up to 86 percent of obstetricians/
        gynecologists unwilling to provide them (Obstetrics & 
        Gynecology, Sept. 2011) and the great majority of hospitals 
        choosing to do so only in rare cases or not at all.
            (9) A health care provider's decision not to participate in 
        an abortion, like Congress' decision not to fund most 
        abortions, erects no barrier to those seeking to perform or 
        undergo abortions but leaves each party free to act as he or 
        she wishes.
            (10) Such protection poses no conflict with other Federal 
        laws, such as the law requiring stabilizing treatment for a 
        pregnant woman and her unborn child when either needs emergency 
        care (Emergency Medical Treatment and Active Labor Act). As 
        previous Administrations have 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).
            (11) 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 DISCRIMINATION AGAINST HEALTH CARE PROVIDERS THAT 
              DO NOT PARTICIPATE 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 DISCRIMINATION AGAINST HEALTH CARE PROVIDERS 
              THAT DO NOT PARTICIPATE IN ABORTION.

    ``(a) In General.--Notwithstanding any other law, the Federal 
Government, and any person or entity that receives Federal financial 
assistance, including any State or local government, may not penalize, 
retaliate against, or otherwise discriminate against a health care 
provider on the basis that the provider does not or declines to--
            ``(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 
        where not prohibited by any other law;
            ``(2) to prevent any health care provider from voluntarily 
        electing to provide or sponsor abortion coverage or health 
        benefits coverage that includes abortion where not prohibited 
        by any other law;
            ``(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--
            ``(1) may issue regulations under--
                    ``(A) this section;
                    ``(B) the Religious Freedom Restoration Act of 1993 
                (42 U.S.C. 2000bb et seq.), with respect to any program 
                or activity funded, administered, or conducted by the 
                Department of Health and Human Services;
                    ``(C) any of subsections (b) through (e) of section 
                401 of the Health Programs Extensions Act of 1973 (42 
                U.S.C. 300a-7) regarding an objection based on a 
                religious belief or moral conviction; and
                    ``(D) any other law protecting the exercise of 
                conscience or religious freedom under programs or 
                activities funded, administered, or conducted by the 
                Department of Health and Human Services, including any 
                laws listed under the final rule issued by the 
                Secretary of Health and Human Services titled 
                `Protecting Statutory Conscience Rights in Health Care; 
                Delegations of Authority' (84 Fed. Reg. 23170; May 21, 
                2019);
            ``(2) shall designate the Director of the Office for Civil 
        Rights of the Department of Health and Human Services--
                    ``(A) to receive complaints alleging a violation of 
                any provision of this section or any provision of law 
                referred to or listed under paragraph (1); and
                    ``(B) to promptly investigate such complaints, 
                issue findings, and require corrective action in cases 
                of such a violation; and
            ``(3) shall, as permitted under law (including the 
        Constitution of the United States), induce compliance of a 
        person or entity, including a State or local government, 
        refusing to comply with a provision of this section, or any 
        provision of law referred to or listed under paragraph (1), by 
        terminating, in whole or in part, any Federal financial 
        assistance provided by the Secretary to such person or entity.
    ``(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' includes--
                    ``(A) an individual physician, health care 
                assistant, nurse, pharmacist, health researcher, or 
                other health care personnel;
                    ``(B) a hospital, laboratory, pharmacy, health 
                system, or other health care or medical research 
                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 or education in the 
                health professions or medical research, a participant 
                in such a program, or any individual applying or 
                otherwise aspiring to participate in such a program;
                    ``(F) an issuer of health insurance coverage or of 
                a health plan; or
                    ``(G) a health care sharing ministry;
                    ``(H) a health insurance plan, including group, 
                individual, or student health plans, or a sponsor or 
                administrator thereof; or
                    ``(I) any other health care organization, program, 
                facility, or plan.
            ``(3) State or local government.--The term `State or local 
        government' 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 without regard to whether such 
                person or entity is a health care provider.
            ``(2) Designated violation.--The term `designated 
        violation' means an actual or threatened violation of section 
        245A or of any other provision of law referred to or listed 
        under section 245A(c)(1).
    ``(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 any 
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 any person or entity receiving Federal 
        financial assistance, including a State governmental entity. 
        Relief in an action under this section may include money 
        damages even if the defendant is 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 appropriate relief, including injunctive relief, 
        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 costs.''.
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