Proposed Health Care Conscience Rights Act — ‘Last and Only Hope’?
House Republicans introduce bill to shield employers from HHS mandate and protect health-care professionals and facilities under pressure to perform abortions.
BY JOAN FRAWLEY DESMOND
| Posted 3/5/13 at 6:36 PM
WASHINGTON — Cathy Cenzon-DeCarlo, a New York state nurse who was forced to participate in an abortion at 22-weeks gestation or risk losing her job and nursing license, told members of Congress that the experience still haunted her dreams.
Cenzon-DeCarlo was among several Catholic women who were invited to a March 5 briefing for House members on the proposed Health Care Conscience Rights Act of 2013.
Fifty GOP House members are co-sponsoring the bill, which offers a broad religious exemption and conscience protections for both private employers who oppose the federal mandate, and for Catholic hospitals and professionals like Cenzon-DeCarlo that face pressure to facilitate abortions.
“The administration has leveraged its expansion of government to trample on the religious freedom of private individuals, hospitals, nonprofits, businesses, churches and universities — forcing many Americans to make an impossible choice: either defy your religious convictions or break the law and face financially crippling legal penalties,” said Rep. Diane Black, R-Tenn.
Black spoke at a March 5 press conference on Capitol Hill that introduced the proposed Health Care Conscience Rights Act, H.R. 940, and she was flanked by fellow House members and by Catholic plaintiffs who have filed legal challenges to the HHS mandate; afterward, the group briefed House members on the bill.
“As a nurse for more than 40 years, I am proud to introduce the Health Care Conscience Rights Act to protect religious freedom, disempower Obamacare and stop the administration’s assault on Americans’ First Amendment rights,” said the congresswoman.
Black, Reps. Jeff Fortenberry, R-Neb., and Dr. John Fleming, R-La., are spearheading the campaign to secure passage of the proposed Health Care Conscience Rights Act.
The bill, they explained in a March 5 statement, offers a “full exemption from the Obama administration's Health and Human Services (HHS) mandate and conscience protection for individuals and health-care entities that refuse to provide, pay for or refer patients to abortion providers because of their deeply held, reasoned beliefs.”
“We have come together to act to protect Americans’ most basic rights — our rights of conscience and religious freedom,” Fortenberry told the Register. “The bill simply restores the basic rights in health care that were widely accepted before the implementation of the new health-care law.”
Authorized under the Affordable Care Act, the HHS mandate has prompted over 40 legal challenges filed by religious institutions and private businesses that oppose co-pay-free coverage of abortion-inducing drugs, sterilization and contraception on moral and religious grounds.
However, opponents of the controversial federal law have pursued a two-track strategy, mounting legal challenges, but also pressing for legislation to secure a broader religious exemption and broad conscience rights for individual employers.
Archbishop William Lori of Baltimore, the chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, released a statement March 5 that called for the bill’s “swift passage into law.”
“While federal laws are on the books protecting conscience rights in health care, this act would make such protection truly effective,” said Archbishop Lori. “This overdue measure is especially needed in light of new challenges to conscience rights arising from the federal health-care reform act.”
In his Feb. 15 letter to lawmakers, Archbishop Lori said that Congress should include religious liberty and conscience protections “when it considers proposals for continued funding of the federal government in the weeks to come."
Matt Bowman of the Alliance Defending Freedom, which is representing a number of plaintiffs in HHS cases, also welcomed the proposed legislation.
While the Alliance Defending Freedom has argued in court that the federal contraception mandate violates the Religious Freedom Restoration Act, Bowman told the Register that the proposed conscience-rights bill “is more specific; it blocks the administration’s hostility to religion possibly without having to rely on the courts, and it makes court action to protect religious freedom more swift.”
Daughter of Charity Sister Carol Keehan, the president and CEO of the Catholic Health Association, whose member hospitals are under increasing pressure to violate Church teachings and offer abortion services, had no immediate comment on the proposed legislation.
“Sister Carol is traveling, and we have to review the legislation through our governance process, so it will be awhile before we have any response,” said Fred Caesar, Sister Carol’s spokesman.
The Human Face
The March 5 Capitol Hill press conference sought to put faces to the HHS lawsuits, and Black introduced several Catholic plaintiffs, including Franciscan Sister Jane Marie Klein, OSF, chairperson of the board of Franciscan Alliance, Inc.
Franciscan Alliance, a 13-hospital medical system that operates in Indiana and Illinois, is a co-plaintiff with the Diocese of Fort Wayne-South Bend, Ind., and members of the Newland family, who own and manage Colorado-based Hercules Industries, Inc.
The three House members at the press conference also underscored the need for sturdy conscience protections for Catholic hospitals and pro-life nurses. Black is a nurse, and Fleming is a physician. In their joint statement, they referenced HHS’s 2011 decision to drop its contract with the USCCB Office of Migration and Refugee Services because the Church’s anti-trafficking program did not provide referrals for contraception and abortion services.
“In recent years, there have been several examples of nurses being told they must participate in abortions. There have also been efforts to require Catholic hospitals to do abortions, and a Catholic social-service provider was denied a grant to assist victims of human trafficking on the basis of its pro-life convictions,” read the statement.
The legislation would protect Catholic programs and institutions from efforts to penalize them for withholding abortion services. The lawmakers said the bill “offers victims of discrimination the ability to vindicate their rights in court without needing to exhaust possible remedies through the U.S. Department of Health and Human Services.”
The bill “codifies and clarifies the appropriations provision known as the Hyde‐Weldon conscience clause,” they said.
“This is accomplished by adding the protections for health-care entities that refuse to provide, pay for or refer for abortion to the section of the Public Health Service Act known as the Coats Amendment. It also adds the option of judicial recourse for victims whose rights have been violated under the HCCRA, Coats or the conscience clauses known as the Church amendments.”
Marie Hilliard, the director of public policy for the National Catholic Bioethics Center, told the Register that “passage of the Health Care Conscience Rights Act is not only vital to the integrity of the health-care professions, but also for the well-being of our society.”
"When whatever is considered legal is then deemed to be moral, vulnerable patients become victims of a health-care system that is directed by economic forces,” said Hilliard, who is a registered nurse and a canon lawyer. “Then any health-care provider objecting to participate on moral grounds erroneously is told that such a position violates the separation of church and state. When this happens, the patient has lost his most precious advocate: a thinking, caring health-care professional who recognizes that what is legal is not always ethical or in the patient's best interest.”
The leading sponsors of the proposed legislation, and their allies in the pro-life movement did not anticipate any obstacles to its passage in the House. But their goal was to attach the language in an amendment to an upcoming Senate appropriations bill.
On March 4, Family Research Council’s Tony Perkins asked his membership to press House members to support the proposed bill “in the must-pass, final 2013 spending bill known as the ‘Continuing Resolution (CR).’”
Perkins wrote, “This is the best, and likely only, opportunity to protect religious freedom this year, as many organizations, religious institutions and businesses face millions of dollars in daily fines once the mandate goes into effect.”
Richard Doerflinger, associate director of the U.S. bishops' Pro-Life Secretariat told the Register, “We have the votes in the House for a stand-alone bill.” But he acknowledged that it would not pass the Senate unless it was part of a spending bill to fund the government, making it much tougher for Democrats to defeat the provision.
Stalled for Now
Yet by the end of a long day on Capitol Hill, which has been roiled by intense partisan conflict over sequestration and related budget battles, the House Committee on Rules signaled that it would bar adoption of the bill as an amendment to the continuing resolution.
The problem, Congressman Fleming explained in an interview, is that “the House leadership thinks it will be tough enough to get [the continuing resolution] passed. Adding another controversy only complicates it by an order of magnitude. The Democrats in the House and Senate and the president don’t want [the conscience rights bill], and they control two-thirds of the government.”
“We are a divided nation on these issues,” Fleming admitted. “But it’s important not to let this discussion die away. We need to show that [the current situation] is hurting real people, until it begins to trend in our direction; and then we can make the conscience protections stick in the law.”
For now, the decision to keep the provision out of the spending bill could mean that operating-room nurses like Cathy Cenzon-DeCarlo will have to wait much longer to obtain the help they need.
“This coercion was illegal,” the Filipino-born nurse told House members, as she recalled the abortion she was forced to facilitate in 2009. “I felt violated all over again when the courts told me that even if the hospital broke the law, I had no right to have my day in court.”
Joan Frawley Desmond is the Register’s senior editor.
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