Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

California allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Physicians, registered nurses, licensed vocational nurses, or persons with staff privileges at or employed by a hospital or facility, as well as nonprofit facilities organized or operated by a religious corporation, association, or organization, or the employees thereof.

What does the refusal clause allow?  No physician, registered nurse, licensed vocational nurse, or person with staff privileges at or employed by a hospital or facility, who objects in writing on moral, ethical, or religious grounds, may be required to directly participate in an abortion.  The refusal of a person to participate may not be a basis for a claim for damages, penalty, discipline, refusal to admit by a medical educational facility, or a refusal to employ unless the person would be assigned in the normal course of business to work in those parts of the facility where abortion patients are cared for.  The refusal of a physician to participate may not be the basis for refusal to grant staff privileges.  A person associated with a medical facility that does not permit abortion who participates in an abortion in another facility may not be subject to penalty.

In addition, no nonprofit facility organized or operated by a religious corporation, association, or organization, or the employees thereof, may be required to permit, provide, or perform abortion services.  The refusal of a facility or its employees to permit or provide abortion may not be a basis for liability or other recriminatory action.

Does the law require the refusing entity to notify the persons affected?  Yes, under some circumstances.  A nonprofit facility must post a notice of its refusal in a location open to prospective and admitted patients.

Are there circumstances under which a refusal clause may not be exercised?  Yes.  The refusal clause does not apply to medical emergency situations.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Cal. Health & Safety Code § 123420 (Enacted 1995).

HEALTH CARE PROVIDER AND HEALTH CARE INSTITUTION REFUSAL CLAUSES

California allows certain individuals or entities to refuse to comply with individual health care instructions or decisions based on conscience.

To whom does the refusal clause apply?  Health care providers and health care institutions.

What does the refusal clause allow?  A health care provider, defined as a person who is licensed, certified, or otherwise authorized by state law to provide health care, may refuse to comply with an individual health care instruction or decision for reasons of conscience.  In addition, a health care institution, defined as an institution, facility, or agency licensed, certified, or otherwise authorized by law to provide health care, may refuse to comply with an individual health care instruction or health care decision if the instruction or decision is contrary to a policy of the institution that is expressly based on reasons of conscience.

Does the law require the refusing entity to notify the persons affected?  Yes.  A health care provider or health care institution that refuses to comply with an individual health care instruction or health care decision must promptly inform the patient.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for the requested health services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  Yes.  A health care provider or health care institution that refuses to comply with an individual health care instruction or health care decision must (1) inform the patient promptly; (2) make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision; and (3) provide continuing care to the patent until the transfer is accomplished or until it appears that a transfer cannot be accomplished.

Cal. Prob. Code §§ 4619, 4621, 4734, 4736.

INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE

Although California law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.

To whom does the refusal clause apply?  Religious employers for whom contraception is contrary to their religious tenets.

What does the refusal clause allow?  A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.

Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women?  No.  The law appropriately defines the term "religious employer" as a non-profit organization that has the purpose of inculcation of religious values and that primarily employs and serves persons who share the religious tenets of the entity.  This narrow definition is appropriately limited in scope, applying to religious entities but not broad-based entities that operate in the public sphere.

Does the law require the refusing entity to notify the persons affected?  Yes.  An employer exercising a refusal clause must provide written notice of the exclusions to prospective employees.

Are there circumstances under which a refusal clause may not be exercised?  Yes.  A refusal clause may not be used to exclude coverage for prescription contraceptive methods ordered for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for prescription contraception necessary to preserve the life or health of an insured.

Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause?  No.

Has a court considered the constitutionality of this law?  Yes.  The California Supreme Court held that this law is constitutional under both federal and state constitutions.  Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004), cert. denied, 125 S. Ct. 53 (U.S. Cal. Oct. 4, 2004).

Cal. Health & Safety Code § 1367.25; Cal. Ins. Code § 10123.196.