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A Proposal for Comprehensive Conscience Clause Legislation

Professor Lynn D. Wardle, J.D.

Introduction:
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 Providers) , 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
Protection Act


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 refusal.

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 health services.

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 beings.

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 convictions.

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 assigned.

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 moral convictions.

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 convictions.

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 diligent effort.

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.

 

 

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