Illinois HB2354 to nullify Health Care Right of Conscience Act

Sean Murphy *
Administrator, Protection of Conscience Project

Illinois has a broadly worded protection of conscience law for health care workers, one of the most comprehensive in the United States [Health Care Right of Conscience Act]. There does not appear to be any evidence that the operation of this Act has caused any significant problem in the state.

Perhaps for this reason, those who want to suppress freedom of conscience for Illinois health care workers did not dare to move to repeal or amend the existing law. Instead, they have introduced the following bill, which is clearly intended to nullify the Health Care Right of Conscience Act with respect to abortion, contraception and related services and procedures. The nullification of the HCRC Act is accomplished through the "notwithstanding" clauses ("Notwithstanding . . . any other law to the contrary").

96TH GENERAL ASSEMBLY

State of Illinois

2009 and 2010

HB2354

Introduced 2/19/2009, by Rep. Barbara Flynn Currie - Rosemary Mulligan - Naomi D. Jakobsson - Elizabeth Coulson - Sara Feigenholtz, et al.

105 ILCS 110/3 from Ch. 122, par. 863

AN ACT concerning public health.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title.

This Act may be cited as the Reproductive Health and Access Act.

Section 5. Findings and policy.

The General Assembly finds and declares that every individual possesses a fundamental right of privacy with respect to reproductive decisions. It is the public policy of this State to ensure that all individuals have appropriate and necessary access to the full range of reproductive education, healthcare and services, including but not limited to prenatal care, adoption, contraceptive care including timely access to emergency contraception, pregnancy termination, comprehensive sexual health education, and screening and treatment for sexually transmitted infections.

Section 10. Definitions.

In this Act:

"Physician" means a person licensed to practice medicine in all of its branches under the Medical Practice Act of 1987.

"Pregnancy termination" or "termination of pregnancy" means any medical treatment intended to terminate a pregnancy. Pregnancy termination shall not include medical treatment conducted for the purpose of increasing the probability of the birth of a sustainable life.

"Viability" means that stage of pregnancy when, in the good faith medical judgment of the attending physician, based on the particular medical facts of the case before the physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the uterus without the application of extraordinary medical measures.

Section 15. Prohibition of interference and retaliation.

(a) Notwithstanding any other provision of this Act or any other law to the contrary, the State or any municipality, political subdivision, or other governmental unit or agency shall not:

(1) deny or interfere with an individual's right to use or refuse contraception;

(2) deny or interfere with a pregnant woman's right to bear a child;

(3) deny or interfere with a pregnant woman's right to terminate a pregnancy:

(i) prior to the viability of the fetus or

(ii) when the abortion is necessary to protect the life or health of the pregnant woman; or

(4) require any woman to terminate pregnancy without her consent.

(b) Any party aggrieved by conduct that violates subsections (1) through (4) of this Section may bring a civil lawsuit in a State circuit court or as a supplemental claim in a federal district court, against the offending unit of government. If a federal or State court finds that a violation of any of subsections (1) through (4) of this Section has occurred, the court may award to the plaintiff actual damages, declaratory or injunctive relief, a temporary restraining order, or other relief. Upon a motion, the court shall award reasonable attorneys' fees and costs, including expert witness and other other litigation expenses, to a plaintiff who is a prevailing party, including where the plaintiff's pursuit of a non-frivolous claim was the a catalyst for a unilateral change in position by the opposing party relative to the relief sought.

Section 20. Non-discrimination in funding.

Notwithstanding any other provision of this Act or any other law to the contrary, the State shall ensure that individuals eligible for State medicaid assistance, or other State medical assistance, receive financial assistance for reproductive healthcare at least to the same extent as other comparable services. Violation of this provision shall constitute a denial or interference in contravention of Section 15 of this Act.

Section 25. Pregnancy terminations.

(a) Pregnancy terminations shall be performed in accordance with accepted standards of medical practice, by the method that, in the clinical judgment of the attending medical professional, will best serve the interests of the pregnant patient. Notwithstanding any other provision of this Act or any other law to the contrary, a qualified medical professional is not liable for civil damages or subject to criminal penalty relating to a pregnancy termination performed in good faith, in accordance with the attending medical professional's good faith clinical judgment and accepted standards of medical practice.

(b) Notwithstanding any other provision of this Act or any other law to the contrary, a report of each pregnancy termination performed shall be made to the Illinois Department of Public Health on forms prescribed by the Department. Such report forms shall not identify the patient by name and shall preserve the anonymity of each woman who has obtained a pregnancy termination. The Department of Public Health shall promulgate and enforce regulations regarding the administration of these reporting requirements that secure protection of patient identity and ensure the anonymity of each woman who has undergone a pregnancy termination. Failure of the Department to preserve confidentiality and anonymity shall constitute interference in contravention of Section 15 of this Act.

Section 30. Sexual health education.

. . . [Full text]

Section 35. Patient access.

(a) Pursuant to this Act, all individuals shall have appropriate and necessary access to the full range of reproductive healthcare. Notwithstanding any other provision of this Act or any other law to the contrary, individual health care professionals who object to providing certain reproductive health care based on religion or personal conscience may refuse to provide such services only under the following conditions:

(1) the objecting health care professional provides prior written notice to patients, or, where the objecting professional is an employee, to his or her employer, of his or her intention to refuse to provide such health care services;
(2) the objecting health care professional or another health care professional within his or her practice or place of employment provides the patient with timely, accurate, and complete information about the patient's care options in a balanced and professional manner;
(3) the objecting health care professional or another health care professional within his or her practice or place of employment assists the patient in obtaining such care in a timely fashion; and

(4) where the objecting health care professional is an employee, the employer can accommodate the employee's objection without undue hardship.

(b) Violations of this Section shall be sanctioned under State licensing statutes by the appropriate State agency.

Section 40. Construction.

This Act and the rules now or hereafter applicable thereto shall be liberally construed consistent with the public policies announced in this Act.

Section 45.

The Critical Health Problems and Comprehensive Health Education Act is amended by changing Section 3 as follows:

. . . [Full text]

Section 97. Severability.

If any portion of this Act or any amendments thereto, or its applicability to any person or circumstance is held invalid by a court, the remainder of this Act or its applicability to other persons or circumstances shall not be affected.

Section 99. Effective date.

This Act takes effect upon becoming law.