A Proposal for Comprehensive Conscience Clause Legislation
Professor Lynn D. Wardle, J.D.
Professor Wardle proposed the following draft protection of conscience
statute in an appendix to his 1993 article in The Journal of Legal
Medicine (Protecting the Rights of Conscience of Health Care
) , which is reviewed on this Website in Issues in Depth.
Lynn Wardle is Professor of Law, J. Reuben Clark Law School, Brigham
Young University, and an advisor to the Protection of Conscience
Project. His Health Care Providers' Rights of Conscience Protection
Act is reproduced here with his permission.
Health Care Providers' Rights of Conscience
Section 1: Policy and Purposes
It is the public policy of (Jurisdiction) to respect and protect the
rights of conscience of all persons who are involved in providing health
services. It is the purpose of this Act to protect as a basic civil right
the right of all persons to refuse to counsel, advise, pay for, provide,
perform, assist, or participate in directly or indirectly providing or
performing health services that violate such persons' religious or moral
convictions; and to prohibit all forms of discrimination, disqualification,
coercion, disability, or liability upon such persons by reason of such
Section 2: Definitions
a) "Health care institution" means any public or private
corporation, partnership, association, organization, agency or other legal
entity that is involved in providing health services, including, without
limitation, hospitals, clinics, physician's offices, medical schools,
nursing schools, other health service training institutions or facilities,
insurance organizations, and financing organizations.
b) "Health care provider" means any health care
institution and any individual involved directly or indirectly in providing
c) "Health services" means any phase or type of health
including but not limited to testing, diagnosis, prognosis, research,
counselling, therapy, treatment, family planning, referral, prescription,
medication, or surgery intended for the physical, emotional or mental
well-being of individuals, and any necessary support services performed at
health care institutions or by health professionals, paraprofessionals,
pharmacists, their staff or employees.
d) "Individual" means any human being or group of human
e) "Medical emergency procedure" means any health
service necessary to save the life of a human being in any stage or
condition of existence from imminent death, requiring for its success the
immediate assistance of a person asserting religious or moral objections,
that must be performed before a replacement for the objecting person can be
obtained or reasonably could have been obtained.
f) "Person" includes all juridical persons, including
but not limited to all public and private individuals, institutions,
entities, organizations, associations, and agencies.
g) "Religious or moral convictions" means the religious
or moral mandates sincerely believed by an individual, and the policies
adopted by the governing body of a health care institution that are based on
sincerely held religious or moral mandates.
Section 3: Civil Rights of Conscience
a) All persons have the right not to counsel, advise, pay for, provide,
perform, assist or participate in directly or indirectly performing health
services that violate his or her or its religious or moral convictions.
b) No person shall be required to counsel, advise, pay for, provide,
perform, assist or participate directly or indirectly in providing or
performing health services that violate his or her or its religious or moral
Section 4: Individual Rights of Conscience
a) No individual shall be required to counsel, advised, pay for, provide,
assist, or participate directly or indirectly in providing health services
that violate his or her religious or moral convictions.
b) No individual shall be civilly, criminally, or administratively liable
to any person for any refusal to counsel, advise, pay for, provide, assist
or participate directly or indirectly in providing or performing health
services that violate his or her religious or moral conviction if
i) prior to the request or assignment he notified the
person making the request or assignment of his or her general refusal and,
if asked, certified such general refusal in writing, or
ii) he or she notified the person making the request
or assignment of his or her refusal within 24 hours after being asked or
c) No person shall discriminate against, penalize, discipline, or
retaliate against any individual in employment, privileges, benefits,
remuneration, promotion, termination of employment; or in eligibility for,
admission to, renewal or participation in, or graduation from any
educational, study, or training program; or in any grant, contract, or other
program because of his or her refusal or unwillingness to counsel, advise,
pay for, provide, perform, assist or participate directly or indirectly in
providing or performing health services that violate his or her religious or
Section 5: Institutional Rights of Conscience
a) No health care institution shall be required to recommend, advised,
pay for, provide, assist, perform or participate in providing or performing
(including, without limitation, to admit for the purpose of providing,
provide facilities, equipment, or personnel for, or maintain as a patient
for) any health services that violates its religious or moral convictions.
b) No health care institution shall be civilly, criminally, or
administratively liable to any person for such refusal if
i) the institution posted notice of its refusal
policy in plain sight in the admission area(s) of the institution prior to
the request or assignment, or
ii) the institution notified the person requesting
such health service of its refusal within 24 hours of the request, and there
has been no irreversible change in the circumstances of the patient or
person making the request or assignment during the time between making the
request and the institution's refusal that would render it unjust for the
institution to refuse the request or assignment.
c) No person shall discriminate or retaliate against any health care
institution in any grant, contract, or program because of its refusal to
counsel, advise, pay for, provide, perform, assist or participate in
providing or performing health services that violate its religious or moral
Section 6: Exceptions
a) The foregoing provisions do not apply to medical emergency procedures.
b) Nothing herein shall relieve any person from liability to pay for a
health service for which he, she or it freely and knowingly contracted to
pay, which was performed before a timely conscientious objection was
asserted, or from liability to pay lawful taxes.
c) Any health care institution or department or division thereof
established for the sole or primary purpose of providing specific health
services to which some individuals may object may exclude persons who object
to such services from employment in a position for which the performance of
such services is a necessary and substantial responsibility, if such
person's moral or conscience rights cannot be reasonably accommodated by
Section 7: Action for Violation of Rights of Conscience
a) Any person injured by any behaviour, act, or omission prohibited in
this Act shall recover three-fold the actual damages sustained (but in no
case shall the recovery be less than $3,000.00 damages for each violation),
plus costs and reasonable attorney's fees.
b) Any person threatened with injury or injured by any other person by
reason of action prohibited in this Act may obtain an injunction against the
illegal activity, plus costs and reasonable attorney's fees.
c) These remedies shall be cumulative and not exclusive of other remedies
afforded under any other federal or state law.
Section 8: Respect for Rights of Conscience (federal)
a) On or before (date), the Secretary of Health and Human Services shall
adopt such regulations as will ensure the protection of rights of conscience
of health care providers by and in all public agencies, entities,
institutions, contracts, grants, and pubicly-funded programs.
b) No rule or regulation shall impair or delay any person who believes
that his or her or its rights under this Act have been threatened or
violated from bringing an action in any state or federal court, except that
reasonable methods of alternative dispute resolution which postpone or delay
proceedings by not more than 45 days may be required.