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Federal Government

Refusal to Provide Medical Services

Federal Government

Refusal to Provide Medical Services

The United States allows certain individuals or entities to refuse to provide women specific reproductive-health services, information or referrals. Soon after the Roe decision, Congress passed legislation allowing individuals and selected health-care entities to refuse to provide or assist in abortion or sterilization services, and health-care entities to refuse to train medical professionals to provide abortion services, require abortion training, or provide referrals for abortion training.  Church amendment to the Public Health Service Extension Act of 1973, Pub. L. No. 93-45, Tit. IV, § 401, 87 Stat. 95 (codified at 42 U.S.C.A. § 300a-7).  Public Health Service Act, 42 § U.S.C.A. 238n(a) (Enacted 1996).    

In 2004, and every year since, Congress has passed the Federal Refusal Clause, which provides that no funds in the bill can go to a government agency or program that "discriminates" against a health-care entity that refuses to provide, pay for, provide coverage of, or refer for abortion services.  Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, Fiscal Year 2006, Pub. Law 109-149, Nov. 30, 2005 (enacted annually since 2004).

In 2005, the State of California filed suit in federal court challenging the constitutionality of the Federal Refusal Clause.  However, the court dismissed the case for lack of standing and ripeness.  State of Cal. v. U.S., No. C 05-00328 JSW, slip op. (N. D. Cal. Mar. 19, 2008). In December 2008, the Department of Health and Human Services, under the Bush administration, wrote a regulation that purported to enforce the refusal laws described above; in actuality, the regulation expands refusal rights by allowing employees who are only tangentially involved in providing the services at issue to refuse to give referrals and information about a broad range of services  The rule also has the potential to grant entire health-care corporations the same "conscience" rights as those offered to individuals.  Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78072 (Dec. 19, 2008) (to be codified at 45 C.F.R. pt. 88).

In March 2009, the Obama administration published a proposal indicating its intention to rescind the regulation, followed by a 30-day public comment period.  The administration ultimately rescinded the most restrictive portions of the regulation in February 2011. Rescission of the Regulation Entitled "Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law," 74 Fed. Reg. 10207 (Mar. 10, 2009) (to be codified at 45 C.F.R. pt. 88).  

As part of the Affordable Care Act, all newly issued health plans must cover the full range of FDA-approved methods of contraception.  The policy explicitly exempts religious houses of worship.  Moreover, the policy allows religiously affiliated employers that presently refuse to offer their employees contraceptive coverage a one-year grace period to come into compliance.  These organizations will be allowed to opt out of the policy permanently if they oppose it - but in those cases, insurance companies will be responsible for covering birth control directly to the consumer.  

In 2012, in response to the birth-control policy, anti-choice members of Congress introduced a flurry of bills in opposition.  Additionally, anti-choice committee chairs held numerous hearings to counter the policy.  While the anti-contraception reaction in Congress resulted in only one floor vote - in the Senate - the lawsuits continue to move through the courts, threatening to restrict this new benefit.   In March 2012, the Senate tabled a measure sponsored by Sen. Roy Blunt (R-MO), which would have allowed any employer or insurance plan to refuse to cover any preventive health service or essential health benefit required under the ACA for virtually any reason.  

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