South Carolina
House Bill 3408 (2011)
Freedom of Conscience Act
Check on the status of this bill at the
South Carolina Legislature
Introduced by Reps. Delleney, Lucas, Simrill, Hiott,
Limehouse, Bowen, Bedingfield, Pinson, J.R. Smith, G.M. Smith, Bingham,
Thayer, V.S. Moss, Brannon, Bikas, Cooper, Allison, Toole, Parker, G.R.
Smith, Frye, Atwater, Henderson, McCoy, Ballentine, Clemmons, Hixon, D.C.
Moss, Pitts, Young, Quinn, Willis, Viers, Sandifer, Stringer, Nanney,
Hamilton, Owens and Huggins
Read the first time January 20, 2011.
Passed by House of Representatives 29 March, 2011
Referred to Senate Committee 31 March, 2011
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 41, Title 44 of the 1976 Code is
amended by adding:
Article 5
Freedom of Conscience Act
Section 44-41-510.
This article may be cited as the 'Freedom of Conscience Act'.
Section 44-41-520.
As used in this article:
(1) 'Conscience' means the religious, moral, or ethical principles held
by a person.
(2) 'Health care facility' means a public or private organization,
corporation, authority, partnership, sole proprietorship, association,
agency, network, joint venture, or other entity that is involved in
providing health care services, including a hospital, clinic, medical
center, ambulatory surgical center, private physician's office, pharmacy,
nursing home, university hospital, medical school, nursing school, medical
training facility, inpatient health care facility, or other place where
health care services are provided.
(3) 'Human embryo' means a human organism from a single cell stage up to
eight weeks development, that is derived by fertilization, parthenogenesis,
cloning, or any other means from one or more human gametes or human diploid
cells.
(4) 'In vitro human embryo' means a human embryo, whether cryopreserved
or not, living outside of a woman's body.
(5) 'Participate in' means to perform, practice, engage in, assist in,
recommend, counsel in favor of, make referrals for, prescribe, dispense, or
administer drugs or devices or otherwise promote or encourage.
(6) 'Person' means any individual, corporation, industry, firm,
partnership, association, venture, trust, institution, federal, state or
local governmental instrumentality, agency or body or any other legal entity
however organized.
Section 44-41-530.
(A) An employer must not dismiss, demote, suspend, or otherwise
discipline or discriminate against an employee or prospective employee who
advises the employer in writing that he or she refuses to participate in the
following:
(1) an experiment or medical procedure that destroys
an in vitro human embryo or uses cells or tissue derived from the
destruction of an in vitro human embryo;
(2) an experiment or medical procedure on an in vitro
human embryo that is not related to the beneficial treatment of the in vitro
human embryo;
(3) an experiment or medical procedure on a
developing child in an artificial or natural womb, at any stage of
development, that is not related to the beneficial treatment of the
developing child;
(4) a procedure, including a transplant procedure,
that uses fetal tissue or organs that come from a source other than a
stillbirth or miscarriage; or
(5) an act that intentionally causes or assists in
causing the death of an individual.
(B) Nothing in this article permits a health care provider or insurer
that otherwise provides, performs, or covers an item or procedure to refuse
to do so for a person based on a judgment that:
(1) discounts the value of the person's life because
of his or her age or disability; or
(2) views the person as not meriting treatment
because of an innate personal characteristic, other than a characteristic
that would reduce the procedure's clinical effectiveness or increase its
risks.
(C) The notice given by an employee pursuant to subsection (A) suffices
without specification of the reason the notice is provided.
Section 44-41-540.
(A) A health care facility is not required to admit any patient or to
allow the use of the health care facility for the purpose of performing any
of the acts specified in Section 44-41-530(A).
(B) A physician, physician's assistant, registered nurse, practical
nurse, pharmacist, or any employee thereof, or any other person who is an
employee of, member of, or associated with the staff of a health care
facility in which the performance of an activity specified in Section
44-41-530(A) has been authorized, who, in writing, refuses or states an
intention to refuse to participate in the activity based on conscience must
not be required to participate in the activity and must not be disciplined
by the respective licensing board or authorized regulatory department for
refusing or stating an intention to refuse to participate in the practice
with respect to the activity. This notice suffices without specification of
the reason the notice is provided.
(C) A physician, physician's assistant, registered nurse, practical
nurse, pharmacist, or any employee thereof, or any other person who is an
employee of, member of, or associated with the staff of a health care
facility is immune from liability for any damage caused by the refusal of
the person to participate in an activity specified in Section 44-41-530(A).
Section 44-41-550.
(A) The State or state exchange may not require an insurance plan or
issuer to cover any of the acts specified in Section 44-41-530(A) that are
contrary to its conscience.
(B) A health plan or health issuer offering coverage within the State
must accommodate the conscientious objection of a purchaser, or of an
individual or institutional health care provider, when any of the acts
specified in Section 44-41-530(A) are contrary to its conscience.
Section 44-41-560.
(A) A health care facility, school, or employer must not discriminate
against any person with regard to admission, hiring or firing, tenure, term,
condition, or privilege of employment, student status, or staff status on
the ground that the person refuses or states an intention to refuse, whether
or not in writing, to participate in an activity specified in Section
44-41-530(A). This notice suffices without specification of the reason the
notice is provided.
(B) A person must not be required to:
(1) participate in an activity specified in Section
44-41-530(A) if the individual's participation in the activity is contrary
to the person's conscience;
(2) make facilities available for an individual to
participate in an activity specified in Section 44-41-530(A) if the person
prohibits the activity from taking place in the facilities on the basis of
conscience; or
(3) provide any personnel to participate in an
activity specified in Section 44-41-530(A) if the activity is contrary to
the conscience of the personnel.
(C) A person must not discriminate against a person attempting to
establish a new health care facility or operating an existing health care
facility in any manner, including, but not limited to the following: any
denial, deprivation, or disqualification with respect to licensure; any aid
assistance, benefit, or privilege, including staff privileges; or any
authorization, including authorization to create, expand, improve, acquire,
or affiliate or merge with any health care facility if such healthcare
facility or person, association, or corporation planning, proposing, or
operating a health care facility declines to participate in a health care
service which violates the health care facility's conscience. However,
nothing in this article permits a health care provider to withdraw or to
refuse to provide medical care based on a judgment that:
(1) discounts the value of the person's life because
of his or her age or disability; or
(2) views the person as not meriting treatment
because of an innate personal characteristic, other than a characteristic
that would reduce the procedure's clinical effectiveness or increase its
risks.
Section 44-41-570.
(A) A person who is adversely affected by conduct that is in violation of
this article may bring a civil action for equitable relief, including
reinstatement or damages, or both reinstatement and damages. An action under
this subsection may be commenced against the State and any office,
department, independent agency, authority, institution, association, or
other body in state government created or authorized to be created by the
state constitution or any law. An action under this subsection must be
commenced within three years after the cause of action arises.
(B) If judgment is rendered in favor of the plaintiff in any action
described in this section, the court also shall award a reasonable
attorney's fee in favor of the plaintiff against the defendant."
SECTION 2. If any section, subsection, paragraph,
subparagraph, sentence, clause, phrase, or word of this act is for any
reason held to be unconstitutional or invalid, such holding shall not affect
the constitutionality or validity of the remaining portions of this act, the
General Assembly hereby declaring that it would have passed this act, and
each and every section, subsection, paragraph, subparagraph, sentence,
clause, phrase, and word thereof, irrespective of the fact that any one or
more other sections, subsections, paragraphs, subparagraphs, sentences,
clauses, phrases, or words hereof may be declared to be unconstitutional,
invalid, or otherwise ineffective.
SECTION 3. Article 1, Chapter 71, Title 38 of the 1976
Code is amended by adding:
Section 38-71-295.
(A) Pursuant to Section 1303(a)(1), as amended by Section 10104(c), of
the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, all
qualified health plans offered through the state exchange are prohibited
from including elective abortion coverage. Nothing in this section shall be
construed as preventing anyone from purchasing optional supplemental
coverage for elective abortions for which there must be paid a separate
premium in accordance with subsection (D) in the health insurance market
outside of the state exchange.
(B) No health plan, including health insurance contracts, plans or
policies, offered outside of the exchange, but within the State, shall
provide coverage for elective abortions except by optional separate
supplemental coverage for abortion for which there must be paid a separate
premium in accordance with subsection (D).
(C) For purposes of this section, an 'elective abortion' means an
abortion for any reason other than to prevent the death of the mother upon
whom the abortion is performed; provided, that an abortion may not be deemed
one to prevent the death of the mother based on a claim or diagnosis that
she will engage in conduct which will result in her death.
(D) The issuer of any health plan providing elective abortion coverage:
(1) shall calculate the premium for such coverage so
that it fully covers the estimated cost of covering elective abortions, per
enrollee, determined on an average actuarial basis, in calculating which the
issuer of the plan may not take into account any cost reduction in any
health plan covering an enrollee estimated to result from the provision of
abortion coverage, including prenatal care, delivery, or postnatal care;
(2) if the enrollee is enrolling in a health plan
providing any other coverage at the same time as the enrollee is enrolling
in a plan providing elective abortion coverage, shall require a separate
signature, distinct from that to enroll in the health plan providing other
coverage, in order to enroll in the separate supplemental plan providing
elective abortion coverage;
(3) shall provide a notice to enrollees, at the time
of enrollment, that:
(a) specifically states the cost of the separate
premium for coverage of elective abortions, distinct and apart from the cost
of the premium for any health plan providing any other coverage in any
health plan covering an enrollee;
(b) states that enrollment in elective abortion
coverage is optional; and
(c) if the enrollee is enrolling in a health plan
providing any other coverage at the same time as the enrollee is enrolling
in a plan providing elective abortion coverage, states that the enrollee,
may choose to enroll in the plan providing other coverage without enrolling
in the plan providing elective abortion coverage.
(E) The issuer of any health plan providing any coverage other than
elective abortion shall not discount or reduce the premium for such coverage
on the basis that an enrollee has elective abortion coverage.
(F) Any employer who offers employees a health plan providing elective
abortion coverage shall, at the time of beginning employment, and at least
once in each calendar year thereafter, provide each employee the option to
choose or reject elective abortion coverage.
(G) Any entity offering a group health plan providing elective abortion
coverage, other than employers offering such a plan to their employees
shall, at the time each group member begins such coverage, and at least once
in each calendar year thereafter, provide each group member the option to
choose or reject elective abortion coverage.
(H) Nothing in this section shall be construed to apply in circumstances
in which federal law preempts state health insurance regulation."
SECTION 4. This act takes effect upon approval by the
Governor.