ANDA Facts

THE NEED FOR COMPREHENSIVE ANTI-DISCRIMINATION PROTECTION FOR HEALTH CARE ORGANIZATIONS THAT CHOOSE NOT TO PROVIDE ABORTIONS

Recent attempts to force health care organizations to provide, refer or pay for abortions demonstrate the need to strengthen federal protections against discrimination based on objections to abortion.

Current Law
Currently, federal law provides limited statutory protection for individuals and providers who choose not to perform or refer for abortion.

Abortion-related Discrimination in Governmental Activities Regarding Training and Licensing of Physicians, 42 U.S.C. § 238n. In 1996, Congress reacted to a dispute involving the accreditation of physician training programs by prohibiting discrimination against health care entities on the basis that they refuse to provide training in, perform, or refer for abortions. .

Recent Threats
Optima Health, Inc. New Hampshire. In 1994, Elliot Hospital and the Catholic Medical Center formed Optima Health, Inc. After abortion advocacy groups learned that the Elliot location would no longer perform elective abortions, they approached the New Hampshire attorney general to challenge the merger. In 1998, the New Hampshire attorney general issued an opinion challenging the merger by applying the law of charitable trusts and concluding on several grounds that the merger must be reviewed in Probate Court. (See New Hampshire Attorney General's Report on Optima Health, March 10, 1998, http://www.state.nh.us/nhdoj/ CHARITABLE/optima1.html). After the opinion was issued, the hospitals dissolved the merger.

Abortion rights groups followed up by developing a strategy to "use charitable assets laws to protect reproductive health services by emphasizing to hospital officials, the media, and the states attorney general that the hospital has violated or is about to violate its mission to provide vital community services." (Hospital Mergers and the Threat to Women's Reproductive Health Services: Using Charitable Assets Laws to Fight Back, National Women's Law Center, 2001).

Valley Hospital Ass'n. v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997). On November 21, 1997, the Alaska Supreme Court held that a private non-sectarian hospital was required to provide abortion. The court reasoned that Alaska law protects abortion as a fundamental right; factors such as, the state's granting of a certificate of need to the hospital, and the receipt of federal and state funds for construction and operation of the hospital, transform the hospital into a "quasi-public" actor, which must provide abortions. The hospital stated that its policy against abortion was based on the sincere moral conscience of the hospital's operating board and asserted that it was protected by the Alaska conscience law. The Alaska Supreme Court struck down the conscience law as applied to this hospital, holding that there is no compelling state interest in the conscience rights of the hospital. In April 1998, a proposed state constitutional amendment to reverse the court's decision fell one vote short of the two-thirds majority needed for approval by the legislature. Incredibly, the court's mandate results in part from the hospital's receipt of federal funds, even though federal funds themselves are generally barred from being used for abortions.

Several other states, like Alaska, protect the abortion right to a greater extent than the federal courts, regarding it as a fundamental right. Hospitals in states where abortion is given such heightened protection are, like Alaska, at risk of having a state court mandate the provision of abortion even in hospitals with moral objections.

Fidelis Health Care New York. In 1997, after the Catholic archdioceses of New York created a managed care health plan, Family Planning Advocates of New York (FPA) began pressuring the state health department to force the Catholic health plan to provide abortion counseling and referrals. FPA has claimed that "Fidelis' ability to serve women of childbearing age is severely compromised by its refusal to cover...abortions" and has called upon the State Health Department to "increase its monitoring of Fidelis' informational and referral processes concerning reproductive health care." FPA also insists that "Fidelis member providers be required to discuss with patients all of their reproductive health care needs and options" and that "they must inform enrollees of their right to obtain desired reproductive health care outside the plan and where this health care can be found" (MergerWatch Guide, pages 24-26). In addition, two bills, with the support of FPA, have been introduced in the New York State legislature to discriminate against hospitals that have policies against abortion. A third bill would mandate abortion coverage in all health plans that provide maternity coverage.

Conclusion
Strengthening and clarifying existing law to protect health care organizations from abortion-related discrimination is urgently needed. Two simple changes in current law would protect all health care organizations from discrimination.

Clarifying Existing Law. Already, the plain language of 42 U.S.C. § 238n protects a broad range of health care providers. The statute says, "the term 'health care entity' includes an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions." 42 U.S.C. § 238n(c)(2). As Senators Coats, Gregg, Frist, Dewine, McConnell and Hutchinson stated in Senate Report 105-220, "by the word 'includes' congress intended to add to, not subtract, from, the range of entities generally seen as health care entities." (Senate Report, 105-220, page 65, June 23, 1998). In light of the pressures placed on health care providers by decisions like Valley Hospital, existing law should be explicitly clarified to state that "health care entity" also includes a hospital, a health professional, a provider sponsored organization, a health maintenance organization, a health insurance plan or any other kind of health care facility, organization or plan. Additionally, the section heading should be modified to read, "abortion-related discrimination in governmental activities regarding training, licensing and practice of physicians and other health care entities," to reflect the newly clarified scope of the statute.

Strengthening Existing Law. Existing law protects health care entities from discrimination based on three kinds of participation in abortion: performing, training and referring. The law should be strengthened to include providing coverage of, or paying for, abortion. This change is urgently needed to protect health care plans, like Fidelis, that have adopted a policy against abortion.

M. Kramlich 04/26

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