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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
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Christian Legal Society

Introduction
The following draft Federal statute is proposed for discussion purposes only by the Christian Legal Society's Center for Law and Religious Freedom.

Please send comments to

Samuel B. Casey,
4208 Evergreen Lane, Suite 222,
Annandale, VA 22003
Tel: 703-642-1070; Fax: 703-642-1075; E-mail: sbcasey@clsnet.org.

H.R.___(PROPOSED DRAFT)_____

The Health Care Freedom of Conscience Act of 2000

(Placed on the Calendar in the House)

Calendar No. ____

106th CONGRESS
2d Session
H.R.______

Entitled the "Health Care Freedom of Conscience Act of 2000"

IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES ___, 2000

Mr. __________(joined by co-cosponsors ___________________) introduced the following bill; which was read the first time ____, 2000

Read the second time and placed on the calendar

A BILL Related to Health Care

Entitled the "Health Care Freedom of Conscience Act of 2000"


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the Health Care Freedom of Conscience Act.

SEC. 2. FEDERAL JURISDICTION

This Act applies to -

a) Any person required to perform or assist in the performance of any part of a health care service or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services.

b) Any health care provider who receives a grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C.A. ' 201 et seq.], the Community Mental Health Centers Act [42 U.S.C.A. ' 2689 et seq.], the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C.A. ' 6000 et seq.], or the Bill of Rights Act [42 U.S.C.A ' 6000 et seq.]

c) Any health care payer who directly or indirectly pays for or arranges for the payment of any health care service or research activity by any person or health care provider, funded in whole or in part under any program, grant, contract, loan or loan guarantee defined in sub-sections (a) and (b) above

SEC. 3. POLICY AND PURPOSES

It is the public policy of United States to respect and protect the rights of conscience of all persons, health care providers and health care payers subject to this Act when they are involved directly or indirectly in performing, providing or paying for health care services. It is the purpose of this Act to protect the civil right of all such individuals, persons, health care providers and health care payers 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.

SEC. 3: DEFINITIONS

As used in this Act, unless the context clearly otherwise requires:

(a) "Health care institution" means any public or private corporation, partnership, association, organization, agency or other legal entity that is involved directly or indirectly in providing health care services, including, without limitation, any public or private hospital, clinic, medical center, medical school, nursing school or other medical training institution, laboratory or diagnostic facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, physician organizations and associations, insurance organizations, and other financing organizations, networks, joint ventures, and all other combinations of those organizations.

(b) "Health care provider" means any health care institution and any individual involved directly or indirectly in providing health services.

(c) "Health care services" means any phase of patient care, including but not limited to, testing; diagnosis; prognosis; ancillary research; instructions; family planning, counseling, referrals, or any other advice in connection with the use or procurement of contraceptives and sterilization or abortion procedures; medication; or surgery or other care or treatment rendered by a physician or physicians, nurses, paraprofessionals or health care provider, intended for the physical, emotional, and mental well-being of persons;

(d) "Physician" means any person who is duly licensed to practice the medical arts as a physician under the laws of the several states.

(e) "Health care personnel" means any nurse, nurses' aide, medical school student, professional, paraprofessional or any other person who furnishes, or assists in the furnishing of, health care services;

(f) "Health care payer" means a health maintenance organization, insurance company, management services organization, or any other entity that pays for or arranges for the payment of any health care or medical care service, procedure, or product.

(g) "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.

(h) "Individual" means any human being or group of human beings.

(i) "Person" includes all juridical persons, including but not limited to health care providers, physicians, health care personnel, and health care payers, and all other public and private individuals, institutions, entities, organizations, associations, and agencies.

(j) "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.

(k) "Conscience" means a sincerely held set of religious or moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths.

SEC. 4: 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 providing or performing health care services that would be contrary to their 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.

SEC 5: INDIVIDUAL FREEDOM OF CONSCIENCE

(a) No individual shall be required to counsel, advise, 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 convictions if

(i) prior to the request or assignment he or she 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.

SEC 6: INSTITUTIONAL RIGHTS OF CONSCIENCE

(a) No health care institution or health care payer shall be required to recommend, advise, 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 care service that violates its religious or moral convictions.

(b) No health care institution or health care payer shall be civilly, criminally, or administratively liable to any person for any 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 or health care payer 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.

(d) It shall be unlawful for any person, public or private institution, or public official to discriminate against any person, association, or corporation (i) attempting to establish a new health care payer or (ii) operating an existing health care payer, in any manner, including but not limited to, denial, deprivation, or disqualification in licensing; granting of authorizations, aids, assistance, benefits, or any other privileges; and granting authorization to expand, improve, or create any health care payer, because the person, association, or corporation planning, proposing, or operating a health care payer refuses to pay for or arrange for the payment of any particular form of health care services that violates the health care payer's conscience as documented in the existing or proposed ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations or other governing documents.

SEC. 7: 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 care 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.

SEC. 8: ACTION FOR VIOLATION OF RIGHTS OF CONSCIENCE

(a) Any person insured by any behavior, 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 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) AUTHORITY OF UNITED STATES TO ENFORCE THIS ACT

The United States may bring an action for injunctive or declaratory relief to enforce compliance with this Act.

(d) These remedies shall be cumulative and not exclusive of other remedies afforded under any other federal or state law.

SEC. 9: RESPECT FOR RIGHTS OF CONSCIENCE TO BE REGULATED

(a) Within one year from the effective date of this Act, the Secretary of Health and Human Services shall adopt such regulations as will ensure the protection of the rights of conscience of any person subject to this Act by and in all public agencies, entities, institutions, contracts, grants, and publicly-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.

SEC.10. SOVEREIGN IMMUNITY

Nothing in this Act shall be construed to abrogate the sovereign immunity of a State.

 

 

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