This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0747b.PPH
DATE: 1/26/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 747 Protections of Medical Conscience
SPONSOR(S): Snyder
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Professions & Public Health Subcommittee 12 Y, 6 N Poche McElroy
2) Judiciary Committee
3) Health & Human Services Committee
SUMMARY ANALYSIS
A network of federal and state statutes creates legal protections for health care providers’ rights of conscience.
These laws originated after the U.S. Supreme Court’s 1973 decision in Roe v. Wade, to ensure that physicians who
opposed abortion on grounds of religion or conscience would not be compelled to participate in those procedures.
Over time, the scope of these conscience protections expanded significantly – today, the laws protect physicians,
pharmacists, other types of health care providers and medical staff, medical students, researchers, and health care
institutions like hospitals and skilled nursing facilities. The laws address various medical procedures beyond
abortion, including sterilization, contraception, emergency contraception, end of life care, aid-in-dying, and stem cell
research. Some laws are broad enough to protect health care providers who object to any medical treatment on
grounds of conscience. Many laws protect not only those who object to performing a specific medical service, but
also those who object to informing patients about, referring patients for, or participating in any way in that service.
The precise scope and content of these protections varies widely across federal and state law.
HB 747 creates s. 381.00321, F.S., establishing a health care provider’s or health care payer’s right to
decline to participate in any health care service that violates the provider’s or payer’s conscience, defined as the
moral, ethical, or religious beliefs or principles held by the provider or payer. The bill also gives a health care
provider that is a business entity and a health care payer that holds itself out as religious, has a religious purpose or
mission evidenced by its operating documents, and has internal procedures to implement the purpose or mission
the right to make employment, staffing, contracting, and credentialing decisions consistent with their religious
beliefs.
The bill also prohibits threatened and actual adverse action against a health care provider or health care payer for
declining to participate in a health care service that violates their conscience; reporting to the appropriate
governmental agency certain violations by the provider or payer’s employer or gross mismanagement, gross waste
of funds, abuse of authority, or any action that is a substantial and specific danger to public health or safety.
Lastly, the bill creates a civil cause of action for treble damages, an injunction, or any other appropriate relief for any
violation of s. 381.00321, F.S. A prevailing plaintiff is also entitled to attorney fees and court costs. The bill provides
immunity from civil, criminal, or administrative liability on the part of a health care provider or health care payer for
exercising their right to conscience.
The bill has no fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2022. STORAGE NAME: h0747b.PPH PAGE: 2
DATE: 1/26/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Conscience
Most definitions in the U.S. legal context broadly define conscience to include moral, ethical, or
religious principles. Some scholars believe that the definition between religion and conscience is a
distinction without a difference. Others have suggested that “the framers viewed ‘free exercise of
religion’ and ‘freedom of conscience’ as virtually interchangeable concepts”.
1
James Madison is
credited with first identifying the right to conscience as fundamental and inalienable, “changing the
Virginia Declaration of Rights from a mere statement of the principle of tolerance to the first official
legislative pronouncement that freedom of conscience and religion are inherent rights of the
individual.”
2
Freedom of conscience is a concept that has been highly valued since the founding of the
United States.
3
The Health Care Right of Conscience Act
4
in Illinois was the first state law of its kind and is model
legislation in the conscience arena. That Act defines ‘conscience’ as “a sincerely held set of moral
convictions arising from belief in and relation to God, or which, though not so derived, arises from a
place in the life of the possessor parallel to that filled by God among adherents to religious faiths.”
5
Conscience cannot to be construed as merely one’s ideas or opinions.
6
Conscience Objections and Health Care Professional Ethics
Health care providers with moral objections to specific health care services have an obligation to alert
their colleagues and supervisors to these objections, in the interests of minimizing disruption in the
delivery of care and minimizing burdens on other providers. Conscientious objection policies may
specify that a professional who has invoked the right to refuse to provide a service must not interfere
with the patient’s ability to obtain it elsewhere. This specification recognizes that it is professionally
inappropriate for health care providers who step away from services to then step between a patient and
another health care provider, whether by refusing to cooperate with the transfer of a patient’s care,
refusing to make a referral, or making a patient feel uncomfortable or ashamed about seeking health
care.
The American Medical Association issued an opinion interpreting its’ Code of Medical Ethics regarding
the physician exercise of conscience in the practice of medicine.
7
Physicians are expected to uphold
the ethical norms of their profession, including fidelity to patients and respect for patient self-
determination. Yet physicians are not defined solely by their profession. They are moral agents in their
own right and, like their patients, are informed by and committed to diverse cultural, religious, and
philosophical traditions and beliefs. For some physicians, their professional calling is imbued with their
foundational beliefs as persons, and at times the expectation that physicians will put patients’ needs
and preferences first may be in tension with the need to sustain moral integrity and continuity across
both personal and professional life.
1
Smith, S.D., What does religion have to do with freedom of conscience?, University of Colorado Law Review, 76, 911-940, 912.
2
Everson v. Board of Education, 330 U.S. 1, 34 (1947).
3
McConnell, M., The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
4
745 Ill. Comp. Stat. 70/2
5
745 Ill. Comp. Stat. 70/3(e)
6
Von Bergen, CW, and Bressler, M, A matter of conscience: do conflicting beliefs and workplace demands constitute religious
discrimination?, Journal of Behavioral Studies in Business, 3, pgs. 113-126, 114 (April 2011).
7
American Medical Association, Code of Medical Ethics Opinion 1.1.7 – Physician Exercise of Conscience, available at
https://www.ama-assn.org/delivery-care/ethics/physician-exercise-conscience. STORAGE NAME: h0747b.PPH PAGE: 3
DATE: 1/26/2022
Preserving opportunity for physicians to act or to refrain from acting in accordance with the dictates of
conscience in their professional practice is important for preserving the integrity of the medical
profession as well as the integrity of the individual physician, on which patients and the public rely.
Physicians should have considerable latitude to practice in accord with well-considered, deeply held
beliefs that are central to their self-identities.
Physicians’ freedom to act according to conscience is not unlimited, however. Physicians are expected
to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment,
and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into
a professional relationship with a new patient.
In other circumstances, physicians may be able to act (or refrain from acting) in accordance with the
dictates of their conscience without violating their professional obligations. Several factors impinge the
decision to act according to conscience. Physicians have stronger obligations to patients with whom
they have a patient-physician relationship, especially one of long standing; when there is imminent risk
of foreseeable harm to the patient or delay in access to treatment would significantly adversely affect
the patient’s physical or emotional well-being; and when the patient is not reasonably able to access
needed treatment from another qualified physician.
In following conscience, the AMA believes that physicians should:
Thoughtfully consider whether and how significantly an action (or declining to act) will
undermine the physician’s personal integrity, create emotional or moral distress for the
physician, or compromise the physician’s ability to provide care for the individual and other
patients.
Before entering into a patient-physician relationship, make clear any specific interventions or
services the physician cannot in good conscience provide because they are contrary to the
physician’s deeply held personal beliefs, focusing on interventions or services a patient might
otherwise reasonably expect the practice to offer.
Take care that their actions do not discriminate against or unduly burden individual patients or
populations of patients and do not adversely affect patient or public trust.
Be mindful of the burden their actions may place on fellow professionals.
Uphold standards of informed consent and inform the patient about all relevant options for
treatment, including options to which the physician morally objects.
In general, physicians should refer a patient to another physician or institution to provide
treatment the physician declines to offer. When a deeply held, well-considered personal belief
leads a physician also to decline to refer, the physician should offer impartial guidance to
patients about how to inform themselves regarding access to desired services.
Continue to provide other ongoing care for the patient or formally terminate the patient-physician
relationship in keeping with ethics guidance.
Some scholars argue that invoking personal conscience violates medical professional ethics.
8
And
while courts will usually not compel health care providers to participate in procedures that violate their
personal faith or conscience, they construe objections of associated “complicity” narrowly and thus may
require such providers to give patients reasonable information about access to appropriate treatment.
9
Conscience clauses are not without controversy. Several scholars question whether offering legal
protections for health care providers’ exercise of conscience is even justified.
10
Other commentators
argue that conscience laws should not protect providers from criminal prosecution,
11
civil liability,
12
or
regulatory sanction.
13
8
Frader, J., Bosk, C.L., The personal is political, the professional is not: conscientious objection to obtaining/providing/acting on genetic
information, Am J Med Genet C Semin Med Genet. 2009;151C(1):62-67.
9
Lynch, H.F., Conflicts of Conscience in Health Care: An Institutional Compromise, Cambridge, MA, MIT Press, 2008: 231.
10
Charo, R.A., The Celestial Fire of Conscience – Refusing to Deliver Medical Care, New England Journal of Medicine 352 (2005), pgs.
2471-2473, 2473.
11
Nelson, L., Provider Conscientious Refusal of Abortion, Obstetrical Emergencies, and Criminal Homicide Law, American Journal of
Bioethics, July;18(7): pgs. 43-50 (2018). STORAGE NAME: h0747b.PPH PAGE: 4
DATE: 1/26/2022
Health Care Conscience Protection Laws
Conscience protection laws protect individuals and entities from being required to perform services that
violate their religious beliefs or moral convictions. These statutes have historically related to abortion,
sterilization, and contraception. Conscience protections apply to health care providers who refuse to
perform, accommodate, or assist with certain health care services on religious or moral grounds. The
inspiration for conscience protection laws may have come from the accommodation requirements in
Title VIII civil rights laws; however, most conscience laws do not have the “reasonable” and “undue
hardship” qualifiers for accommodating religious practices under that federal law.
Conscience protection laws are generally designed to reconcile “the conflict between religious health
care providers who provide care in accordance with their religious beliefs and the patients who want
access to medical care that these religious providers find objectionable”.
14
Such laws protect
conscientious objectors from coercive hiring or employment practices, discrimination and other forms of
punishment or pressure. Also, these laws generally include civil liability protection. Federal statutes
protect health care provider conscience rights and prohibit recipients of certain federal funds from
discriminating against health care providers who refuse to participate in these services based on moral
objections or religious beliefs.
Despite the level of interest in tracking legislative developments related to conscience laws in the U.S.,
there exists no empirical data on how frequently these various types of procedural protections arise.
15
Federal Health Care Conscience Protections
Several federal health care provider conscience protection laws, detailed below, prohibit recipients of
certain federal Department of Health and Human Services (HHS) financial assistance from
discriminating against certain health care providers because of their refusal or unwillingness to
participate in certain medical procedures, such as sterilization procedures and abortions, that are
contrary to or consistent with the provider’s religious beliefs or moral convictions. Providers protected
under these federal laws include:
Individual physicians;
Researchers;
Nurses;
Applicants for internships or residencies;
Other health care professionals;
Hospitals;
Health insurance plans;
Provider-sponsored organizations;
Health maintenance organizations;
Health care facilities; and
Other health care entities.
16
The following “covered entities” must comply with the federal health care provider conscience laws:
Federal agencies funded by appropriations to the U.S Departments of Health and Human
Services (HHS), Labor, and Education;
Qualified health plans offered through a health insurance exchange;
12
Rich, B.A., Your Morality, My Mortality: Conscientious Objection and the Standard of Care, Cambridge Quarterly of Healthcare
Ethics, 24: pgs. 214-230, 228 (2015).
13
Id.
14
White, K.A., Crisis of conscience: Reconciling religious health care providers’ beliefs and patient rights, Stanford Law Review, 51,
1703-1749 (1999).
15
Sawicki, N., The Conscience Defense to Malpractice, 108 Calif. L. Rev. 1255, pg. 1260 (2020).
16
U.S. Department of Health and Human Services, Office for Civil Rights, OCR Fact Sheet: Your Rights Under the Federal Health Care
Provider Conscience Protection Laws, available at
https://www.hhs.gov/sites/default/files/ocr/civilrights/provider_conscience_factsheet.pdf. STORAGE NAME: h0747b.PPH PAGE: 5
DATE: 1/26/2022
Any entity receiving federal financial assistance under certain HHS-implemented statutes; and
Any entity which receives an HHS grant or contract for biomedical or behavioral research.
17
Under the federal health care provider conscience laws, covered entities may not, if it would be contrary
to the individual’s or health care entity’s religious beliefs or moral convictions:
Require the individual to participate in sterilization or abortion;
Require the entity to make its facilities available for sterilization or abortion;
Require the entity to provide personnel to participate in sterilization or abortion;
Discriminate against any physician or health care personnel in employment or staff privileges
because the individual participated in or refused to participate in sterilization or abortion;
Discriminate against any physician or health care personnel in employment or staff privileges
because the individual participated in or refused to participate in any lawful health service or
research activity;
Deny admission to or otherwise discriminate against any training program applicant (including
applicants for internships or residencies) because of the applicant’s reluctance or willingness to
participate in sterilization or abortion; or
Discriminate against any individual or institutional health care entity that does not train in the
performance of abortions or provide, pay for, provide coverage of, or refer for abortion.
18
Also, covered entities must deem accredited any postgraduate physician training program that would
be accredited, but for the reliance on an accrediting standard that (regardless of whether such standard
provides exceptions or exemptions) requires an entity to perform abortions; or provide training for
abortions.
19
Office of Civil Rights
The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) enforces
federal civil rights laws, conscience and religious freedom laws, the Health Insurance Portability and
Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules, and the Patient Safety Act
and Rule, which together protect your fundamental rights of nondiscrimination, conscience, religious
freedom, and health information privacy. OCR protects rights by:
Teaching health and social service workers about civil rights laws, conscience and religious
freedom laws, health information privacy, and patient safety confidentiality laws.
Educating communities about civil rights, conscience and religious freedom rights, and health
information privacy rights.
Investigating civil rights, conscience and religious freedom, health information privacy, and
patient safety confidentiality complaints to identify discrimination or violation of the law and
acting to correct problems.
A complaint under the Federal Health Care Provider Conscience Protection Statutes may be filed with
the OCR if an individual believes he or she experienced discrimination because they:
Objected to, participated in, or refused to participate in specific medical procedures, including
abortion and sterilization, and related training and research activities.
Were coerced into performing procedures that are against your religious or moral beliefs.
Refused to provide health care items or services for the purpose of causing, or assisting in
causing, the death of an individual, such as by assisted suicide or euthanasia.
OCR coordinates the handling of complaints with staff of the HHS programs from which the entity, with
respect to whom a complaint has been filed, receives funding. If HHS becomes aware that a state or
local government or an entity has conducted activities that may violate federal conscience protection
17
Id.
18
Id.
19
Id. STORAGE NAME: h0747b.PPH PAGE: 6
DATE: 1/26/2022
laws, HHS will work with the offending government or entity to achieve voluntary compliance.
20
If
voluntary compliance cannot be reached, HHS considers all legal options, including terminating funding
and collecting fines paid out from violating the statutory conscience protections.
21
OCR receives discrimination complaints under the following statutes:
The “Church Amendments”
The conscience provisions contained in 42 U.S.C. § 300a-7 et seq., collectively known as the “Church
Amendments,” were enacted in the 1970s to protect the conscience rights of individuals and entities
that object to performing or assisting in the performance of abortion or sterilization procedures if doing
so would be contrary to the provider’s religious beliefs or moral convictions. The Church Amendments
were also the first federal conscience provisions to be enacted and are the broadest in scope. This
provision also extends protections to personnel decisions and prohibits any entity that receives a grant,
contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating
against any physician or other health care personnel in employment because the individual either
performed, or refused to perform an abortion if doing so would be contrary to the individual’s religious
beliefs or moral convictions. Specifically, the amendments contain the following major provisions:
Prohibit courts and other public officials from requiring individuals or institutions receiving grants
under certain federal programs to perform or assist in abortions or sterilizations or to provide
facilities or personal for the same procedures;
22
Forbid discrimination against physicians or other health care providers because of their religious
or moral objections to performing abortions or sterilizations;
23
Extend protection to individuals, including researchers and laboratory staff participating in HHS-
funded behavioral or biomedical research;
24
and
Bar any program funded by HHS from requiring any individual to perform or assist in “any part”
of a “health service program or research activity” if such participation would be contrary to the
individual’s religious beliefs or moral convictions.
25
The Coats-Snowe Amendment
In 1996, Congress passed the Omnibus Consolidated Rescissions and Appropriations Act of 1996.
The Act addressed many issues, including funding for several federal agencies, prison litigation reform,
and funding for the District of Columbia and reform of its schools. The Coats-Snowe Amendment was
included in a general provision portion of the Act. The Amendment provides conscience protections for
health care entities and individuals in connection with abortion training. The Amendment was enacted
to address a new standard from the Accreditation Council for Graduate Medical Education (ACGME),
which governs medical residencies, that required access to experience with induced abortion to be part
of a resident’s education, unless the resident had a moral or religious objection to such abortions.
26
Previously, training for abortions had been voluntary and not required for residency accreditation.
The Coats-Snowe Amendment prevents the federal government and any state or local government that
receives any federal financial assistance from subjecting any “health care entity” to “discrimination” for
refusing to train or arrange for training for induced abortions.
27
Such government units also may not
20
U.S. Department of Health and Human Services, Office of the Secretary, Office for Civil Rights, Enforcement of the Federal Health
Care Provider Conscience Protection Laws, slide 8 (June 9, 2016), available at https://www.hhs.gov/sites/default/files/ocr-provider-
conscience-powerpoint-6-9-2016.pdf.
21
Id.
22
42 U.S.C. s. 300a-7(b)
23
42 U.S.C. s. 300a-7(c)(1); areas of prohibited discrimination include employment, promotion, termination, and extending staff
privileges; the Church Amendments also prohibit discrimination against individuals because of their past involvement in lawful abortions
or sterilizations.
24
42 U.S.C. s. 300a-7(c)(2); under this provision, no individual can be discriminated against on the basis that the individual performed
or assisted in any lawful research activity or the individual refused to perform or assist in any research activity because it would be
contrary to his or her religious beliefs or moral convictions.
25
This provision covers a broad array of activities, including contraception programs and research activities administered by HHS.
26
Accreditation Council for Graduate Medical Education, 1996-1997 Graduate Medical Education Directory 135 (1996), available at
http://acgme.org/Portals/0/PDFs/1996-97.pdf.
27
42 U.S.C. s. 238n(a)(1)-(2) STORAGE NAME: h0747b.PPH PAGE: 7
DATE: 1/26/2022
discriminate against persons who attend a post-graduate training program that lacks abortion training.
28
The Amendment defines “health care entity” to “include an individual physician, a postgraduate
physician training program, and a participant in a program of training in the health professions.”
29
It
does not define “discrimination.”
The Coats-Snowe Amendment also addresses the accreditation of medical training programs. The
federal government and any state or local government that receives federal funds must accredit a
“health care entity” that, but for its refusal to provide abortion training, would be accredited.
30
As to this
provision only, the Amendment expressly confers rulemaking authority. It provides that “[t]he
government involved shall formulate such regulations . . . as are necessary to comply with this
subsection.”
Public Health Service Act S. 245
Enacted in 1996, section 245 of the Public Health Service Act, contained in 42 U.S.C. § 238n, prohibits
the federal government and any state or local government receiving federal financial assistance from
discriminating against any health care entity on the basis that the entity:
Refuses to undergo training in the performance of induced abortions, to require or provide such
training, to perform such abortions, or to provide referrals for such training or such abortions;
31
Refuses to arrange for such activities
32
; or
Attends (or attended) a post-graduate physician training program, or any other program of
training in the health professions, that does not (or did not) perform induced abortions or
require, provide, or refer for training in the performance of induced abortions, or arrange for the
training.
The Weldon Amendment
The Weldon Amendment was originally passed as part of the HHS appropriation and has been
readopted or incorporated by reference in each subsequent HHS appropriations act since 2005. It
provides that “none of the funds made available in this Act [making appropriations for the Departments
of Labor, Health and Human Services, and Education] may be made available to a Federal agency or
program, or to a state or local government, if such agency, program, or government subjects any
institutional or individual health care entity to discrimination on the basis that the health care entity does
not provide, pay for, provide coverage of, or refer for abortions.” The Amendment covers a diverse
group of healthcare entities, including physicians and other healthcare providers, hospitals, provider-
sponsored organizations, HMOs, insurance plans and any kind of healthcare facility, organization or
plan.
Patient Protection and Affordable Care Act (PPACA)
The PPACA (Pub. L. No. 111-148 as amended by Pub. L. No. 111-152) includes health care provider
conscience protections within the health insurance exchange program. Section 1303(b)(4) of the Act
provides that “No qualified health plan offered through an Exchange may discriminate against any
individual health care provider or health care facility because of its unwillingness to provide, pay for,
provide coverage of, or refer for abortions.” An Executive Order from President Obama affirmed that
under the PPACA, longstanding federal health care provider conscience laws remain intact, and new
protections prohibit discrimination against health care facilities and health care providers based on their
unwillingness to provide, pay for, provide coverage of, or refer for abortions.
33
28
Id. at s. 238n(a)(3)
29
Id. at s. 238n(c)(2)
30
Id. at s. 238n(b)(1)
31
42 U.S.C. s. 238n(a)
32
Id.
33
The White House, President Barack Obama, Executive Order 13535, Ensuring Enforcement and Implementation of Abortion
Restrictions in the Patient Protection and Affordable Care Act (March 24, 2010). STORAGE NAME: h0747b.PPH PAGE: 8
DATE: 1/26/2022
Additionally, section 1553 of the Affordable Care Act incudes conscience protections regarding assisted
suicide:
34
“The Federal Government, and any State or local government or health care provider that
receives Federal financial assistance under this Act (or under an amendment made by this Act) or any
health plan created under this Act (or under an amendment made by this Act), may not subject an
individual or institutional health care entity to discrimination on the basis that the entity does not provide
any health care item or service furnished for the purpose of causing, or for the purpose of assisting in
causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.”
Section 1303 provides that a State may choose to prohibit abortion coverage in its qualified health
plans
35
, and that such a plan is not required to provide abortion coverage as part of its “essential health
benefits.”
36
However, a qualified health plan that declines to provide abortion coverage must provide
notice of this exclusion to potential enrollees.
37
And no qualified health plan may “discriminate” against
any health care provider or facility because it refuses to provide, pay for, cover, or “refer for”
abortions.
38
Section 1303 does not define “discriminate” or “refer for.”
Congress recognized the potential conflict between section 1303 and other federal and state statutes,
so the law states that nothing in the PPACA shall be construed to preempt or effect state laws on
abortion, federal laws on abortion, specifically, those related to conscience protection, willingness or
refusal to provide abortion, and discrimination based on that willingness or refusal,
39
or to relieve health
care providers of their obligations to provide emergency services under federal or state laws, including
the Emergency Medical Treatment and Labor Act.
40
Section 1303 also states that it does not “alter the
rights and obligations of employees and employers” under Title VII.
41
Section 1411 addresses exemptions to the PPACA’s “individual responsibility requirement”, known as
the individual mandate.
42
Under this section, HHS may grant exemptions based on hardship, which
HHS has stated includes an individual’s inability to secure affordable coverage that does not provide for
abortions,
43
membership in a particular religious organization, or membership in a health care sharing
ministry.
44
Medicaid and Medicare Advantage Conscience Provisions
In 1997, Congress passed the Balanced Budget Act of 1997, which included conscience provisions in
various sections regarding Medicaid and Medicare. The statute prohibited Medicaid-managed
organizations and Medicare Advantage plans from prohibiting or restricting a physician from informing a
patient about his or her health and full range of treatment options.
45
But it also provided that Medicaid
managed care organizations and Medicare Advantage plans are not required to provide, reimburse for,
or cover a counseling or referral service if the organization or plan objects to the service on moral or
religious grounds.
46
The organization or plan must, however, provide sufficient notice of their moral
objections to prospective enrollees.
47
Neither the Medicaid nor Medicare Advantage provisions define
“referral.” The HHS Secretary does, however, have explicit rulemaking authority under the Social
Security Act to implement these provisions.
48
34
42 USC s. 18113
35
42 U.S.C. s. 18023(a)(1)
36
Id. at s. 18023(b)(1)(A)(i)
37
Id. at s. 18023(b)(3)(A)
38
Id. at s. 18023(b)(4)
39
Id. at s. 18023(c)(2)(A)
40
Id. at s. 18023(d)
41
Id. at s. 18023(c)(3)
42
42 U.S.C. s. 18081(b)(5)(A)
43
84 Fed. Reg. at 23,172
44
42 U.S.C. s. 18081(5)
45
42 U.S.C. s. 1395w–22(j)(3)(A)(Medicare Advantage); 42 U.S.C. s. 1396u–2(b)(3)(A)(Medicaid).
46
42 U.S.C. s. 1395w–22(j)(3)(B)(Medicare Advantage); 42 U.S.C. s. 1396u–2(b)(3)(B)(Medicaid).
47
42 U.S.C. ss. 1395w–22(j)(3)(B)(ii) (Medicare Advantage); 42 U.S.C. s. 1396u–2(b)(3)(B)(ii) (Medicaid).
48
42 U.S.C. s. 1395w–26(b)(1) (Medicare Advantage). STORAGE NAME: h0747b.PPH PAGE: 9
DATE: 1/26/2022
OCR Enforcement Activities
Some examples of OCR’s enforcement activities include:
OCR received complaints alleging Vanderbilt University violated the conscience rights of two
nurse residency program applicants under the Church Amendments by requiring a written
promise that the applicants would assist in pregnancy termination procedures.
49
OCR
investigated and worked with Vanderbilt to resolve the complaints. In response, Vanderbilt
agreed to:
o Inform nurse residency candidates that it does not require them to participate in
pregnancy termination procedures, if it is inconsistent with their religious beliefs and
moral convictions;
o Remove to original acknowledgement form and replace it with information clarifying its
accommodations for religious beliefs and moral convictions; and
o Send revised information packets to new candidates, including the complainants.
50
OCR received complaints alleging Mt. Sinai Hospital forced a nurse to assist in performing an
abortion, against her religious objections.
51
The complaint also alleged the hospital
discriminated against the nurse by reducing the number of on-call shifts she received and
asking her to sign a statement of her willingness to participate in abortions in emergencies, as a
condition of getting assigned more on-call shifts, all of which violated the Church Amendments,
Section 245 of the Public Health Service Act, and the Weldon Amendment.
52
Following an
investigation by OCR, the hospital agreed to:
o Use its best efforts to ensure that non-objecting health care personnel are
available to perform abortions;
o Issue and post a revised Human Resources Policy stating that: “The Mount Sinai
Hospital does not discriminate in the employment, promotion, or termination of
employment of any physician or other health care personnel…, because he or she
performed or assisted in the performance of a lawful sterilization procedure or abortion,
or because he or she refused to perform or assist … [due to his or her] religious beliefs
or moral convictions”;
o Comply with provisions of the Church Amendments; and
o Train operating room managers, nurses and surgical technicians on the hospital’s
obligations to comply with the Church Amendments and train administrative staff to
ensure that the operating room nurses’ and surgical technicians'’ objecting or non-
objecting status is properly recorded.
53
State Health Care Conscience Protections
The states have been leaders in conscience protection in the workplace.
54
While federal conscience
protection laws generally deal with appropriations of federal funding, state laws protect against a
broader range of penalties, including civil liability, criminal prosecution, loss of licensure, employment
discrimination, discrimination in education, and denial of private or public funding.
55
Of these, civil
liability immunity is by far the most common procedural protection.
56
In a majority of states, this
immunity is absolute – providing no exceptions in the cases of malpractice, denial of emergency
treatment, or patient death.
57
49
Supra, FN 13 at slide 21.
50
Id. at slide 22.
51
Id. at slide 23.
52
Id.
53
Id. at slide 24.
54
Sonne, J., Firing Thoreau: Conscience and At-Will Employment, University of Pennsylvania Journal of Labor and Employment Law,
Vol. 9, pgs. 235-291, 267 (2007).
55
Durham, R., Neither Right nor Safe to Go Against It: Defending the Constitutionality of Conscience Laws, University of Cincinnati Law
Review (May 12, 2021), available at https://uclawreview.org/2021/05/12/neither-right-nor-safe-to-go-against-it-defending-the-
constitutionality-of-conscience-laws/
56
Supra, FN 8.
57
Id. STORAGE NAME: h0747b.PPH PAGE: 10
DATE: 1/26/2022
Three states stand out as examples of broader conscience protections at the state level – Illinois,
Mississippi, and Washington.
Illinois – Any person, public or private institution, or public official may not discriminate against
any other person in any manner because of that person's conscientious refusal to receive,
obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any
particular health care service that violates his or her conscience.
58
Mississippi – Any person, health care provider, health care institution, public or private
institution, or public official may not discriminate against any health care provider in any way
because the provider declined to participate in a health care service that violates his or her
conscience.
Washington – A health care provider, religiously sponsored health carrier, or health care facility
may not be required to provide or pay for a health care service if they object to so doing for
reason of conscience or religion. The law prohibits employment or professional privileges
discrimination because of such objection.
59
In addressing all health care services, the statutes in the preceding three states went well beyond the
procedure-specific laws of other states at the time. It is also interesting to note the expansive meaning
of “conscience” in each state – Illinois defines it as a “sincerely held set of moral convictions”;
Mississippi includes “religious, moral, or ethical principles”; and Washington offers no definition at all.
60
Following enactment of the Church Amendments, least 47 states and the District of Columbia passed
conscience protection laws regarding the refusal to perform abortions.
61
Of these, at least 40 states
offer protection from employment discrimination and/or recrimination.
62
The majority of U.S. jurisdictions
(47 states) have conscience laws establishing a right on the part of individual and/or institutional health
care providers to refuse to participate in abortion.
63
Fewer jurisdictions have laws relating to
conscience-driven refusal to participate in sterilization (17 states), contraception (16 states), or
emergency contraception (5 states).
64
Of the forty-seven jurisdictions with abortion-specific conscience laws (forty-six of which protect rights
of refusal),
65
thirty-seven explicitly establish immunity from civil liability for individual and/or institutional
health care providers who refuse to participate in abortion. Thirty states protect providers from
"disciplinary action." This term is often unspecified and undefined, though it is occasionally tied to
specific adverse actors like employers. Twenty-six states protect providers from "discrimination," a
similarly vague term. Another twenty-six states provide explicit protection against adverse actions by
employers (for example, decisions relating to hiring, dismissal, demotion, transfer, wages, or staff
privileges). Protection against adverse action by government actors, educational institutions, criminal
prosecutors, state licensing boards, and funding sources was less common. Only four states establish
a right to refuse but do not explicitly delineate any specific procedural protections.
66
Each of the thirty-seven states that expressly established civil immunity for abortion refusal identified
specific categories of providers entitled to such immunity. The most commonly protected
groups were:
58
745 Ill. Comp. Stat. Ann. 70/5 (2002).
59
Wash. Rev. Code Ann. s. 70.47.160(2)(a) (2002).
60
Supra, FN 47 at pg. 275.
61
Id.
62
Id.
63
Supra, FN 8 at pg. 1273-74.
64
Id.
65
Among the seventeen states with sterilization-specific conscience laws, fifteen provide for civil immunity. Civil liability protections
were less common in laws relating to contraception and emergency contraception. Sixteen states have contraception-specific laws, but
only five establish immunity from civil liability. Five states have laws relating to emergency contraception, but only one establishes
immunity from civil liability.
66
Ariz. Rev. Stat. Ann. § 36-2154 (2020); Conn. Agencies Regs. § 19-13-D54 (2005); Tenn. Code Ann. §§ 39-15-204, 39-15-205
(2007); W. Va. Code § 16-2F-7 (2020). STORAGE NAME: h0747b.PPH PAGE: 11
DATE: 1/26/2022
"Any person" (twenty-six states),
Health care facilities (twenty-six states),
Physicians (seventeen states),
Registered nurses (sixteen states), and
Staff working at health care facilities (fourteen states).
Other categories of providers also singled out for civil immunity included:
Private health care facilities (nine states),
Health care providers (six states),
Students (five states),
Pharmacists (three states),
Any licensed professionals (two states),
Mental health professionals (two states),
Public employees (two states), and
Religious health care facilities (one state).
67
Overall, all but two states protected extremely broad categories of individuals-either "persons" generally
(not including health care professionals), health care providers, or staff and employees of health care
facilities.
68
All but five states provided civil immunity to at least some health care facilities.
69
An
additional five states limited institutional protections to private facilities
70
, and one state protected
facilities only if they were religiously affiliated.
71
Although most states explicitly identify narrower categories of providers for civil immunity, almost every
state protects a very broad range of individuals (thirty-five of thirty-seven states), and all or some health
care facilities (thirty-two of thirty-seven states). Thus, in civil immunity states, most individuals and
facilities are immune from suit if their unwillingness to participate in abortion falls below the standard of
care and causes patient injury.
72
In other reproductive health contexts, there are similar patterns. Of the seventeen states with
conscience laws relating to sterilization, only four limit providers' refusal rights in any way.
73
Of the
sixteen states with contraception laws, only six states limit providers' refusal rights or impose conditions
to protect patients.
74
Of the five states with emergency contraception laws, three states limit providers'
refusal rights.
75
Among the forty-seven states with abortion refusal laws, only one state, Maryland, explicitly limits a
provider's civil immunity where their conduct has violated the standard of care. However, Maryland's
law does not provide patients with a remedy for all harms. Rather, it only applies in cases where the
provider breaches a duty to give a referral and that breach causes the patient's "death or
serious physical injury."
76
Other states limit providers' conscience protections in situations where conscience-based refusals
might seriously endanger patients. Thirteen states limit the right to refuse participation in abortion cases
67
Supra, FN 8 at pgs. 1276-77.
68
The two outlier states did not extend their civil immunity provisions to any individual providers. Nev. Rev. Stat. §449.191
(2019)(protecting only private health facilities); Or. Rev. Stat. § 435.475 (2019)(protecting only hospitals).
69
Ga. Code Ann. § 16-12-142 (2013); Iowa Code § 146.2 (2020); Mass. Gen. Laws ch. 112, § 121 (2003); N.C. Gen. Stat. § 14-45-1
(2019).
70
Ky. Rev. Stat. Ann. § 311.800 (2020); Nev. Rev. Stat. § 449.191; Okla. Stat. tit. 63 § 1-741 (2019); S.C. Code Ann. § 44-41-40
(2019); Wyo. Stat. Ann. §§ 35-6-105, 35-6-106 (2019).
71
Cal. Health & Safety Code § 123420(c)(2020)(protecting "nonprofit hospital[s]" and "other facility[ies] or clinic[s] ... organized or
operated by a religious corporation or other religious organization," and also persons, physicians, nurses, and facility staff)
72
Among the fifteen states with sterilization-specific conscience laws that explicitly establish civil immunity, all protect at least one broad
category of individual providers (persons, providers, or facility staff), and all but three protect health care facilities.
73
Ala. Code § 22-21B-4(b)(2019; 745 Ill. Comp. Stat. 70/6 (2019); Id. 70/6.1; Md. Code Ann., Health-Gen. § 20-214(d)(2020); 16 Pa.
Code § 51.31(e)(2019); Id. §§ 51.42(a), .43(a).
74
Cal. Code Regs. tit. 16, § 1746.1(b)(9)(2020); Ga. Code Ann. § 49-7-6 (2001); 745 Ill. Comp. Stat. 70/6; Id. 70/6.1; N.Y. Comp.
Codes R. & Regs. tit. 18 § 463.6(d) (2020); Or. Rev. Stat. § 435.225 (2019); Wis. Stat. Ann. § 253.075(3)(b)(2020).
75
Ariz. Rev. Stat. Ann. § 36-2154(B)(2020); Cal. Code Regs. tit. 16, § 1746(b)(5)(2020); Idaho Code § 18-611(4), (6) (2019).
76
Md. Code Ann., Health-Gen. § 20-214(d). STORAGE NAME: h0747b.PPH PAGE: 12
DATE: 1/26/2022
where a patient requires emergency treatment.
77
A few states restrict the scope of abortion objections
to exclude procedures intended to treat miscarriage (four states)
78
or ectopic pregnancy (three states)
79
conditions that can seriously threaten a pregnant patient's health.
Some states have also established patient-protective conditions on the exercise of providers' refusal
rights. Eight states impose a duty to notify the patient of the refusal or of the hospital's general policy
opposing abortion.
80
Two states require that providers who refuse to participate directly in abortions
nevertheless ensure that the patient can access the service from another provider.
81
Two states require
refusing providers to give the patient information regarding access to the requested service.
82
Two
states require that a refusing provider return the patient's prescription.
83
Only one state imposes a
statutory requirement that refusing providers satisfy the duty to secure a patient's informed consent,
including the duty to inform patients of "legal treatment options" and the risks and benefits of these
options."
84
The following chart summarizes health care provider conscience protection laws in the states.
85
State Policies Allowing Providers to Refuse to Provide Health Care Services
Due to Conscientious Refusal
State
Abortion Contraception Sterilization
Provider Institution Provider Pharmacist Institution Provider Institution
Fed. Policy X X X X
Alabama X X
Alaska X Private
Arizona X± X± X X X
Arkansas X X X X X X X
California X Religious
Colorado X * Private
Connecticut X
77
Ala. Code § 22-21B-4(b); Cal. Health & Safety Code § 123420(d) (2020); Idaho Code § 18-611(4); Id. § 18-611(6); 745 Ill. Comp.
Stat. 70/6; Iowa Code § 146.1 (2020); Ky. Rev. Stat. Ann. § 311.800(1)(2020); La. Stat. Ann. § 40:1061.23(2020); Id. § 40:1061.5; Md.
Code Ann., Health-Gen. § 20-214(d); Nev. Rev. Stat. § 632.475(3) (2019); Okla. Stat. tit. 63, § 1-741(B)(2019); Id. § 1-741(C); Id. § 1-
728c(1); 16 Pa. Code §§ 51.42(a), .43(a); Id. § 51.43(b) (1977); S.C. Code Ann. § 44-41-40 (2019); Tex. Occ. Code Ann. §
103.004(2020).
78
Cal. Health & Safety Code § 123420(d); La. Stat. Ann. § 40:1061.9(1)(b) (2020); Okla. Stat. tit. 63, § 1-741(C); 16 Pa. Code §
51.43(b).
79
Ariz. Rev. Stat. Ann. § 36-2151(1) (2020); La. Stat. Ann. § 40:1061.9(1)(c); Utah Code Ann. § 76-7-301(1)(b)(ii)(2019).
80
Cal. Health & Safety Code § 123420(c); 745 Ill. Comp. Stat. 70/6.1 (2019); La. Stat. Ann. § 40:1061.20(4) (2020); Neb. Rev. Stat. §
28-337 (1977); N.Y. Comp. Codes R. & Regs. tit. 10, § 405.9(b)(10)(2020); Or. Rev. Stat. § 435.475(1)(2019); 16 Pa. Code § 51.31(e)
(2019); Wyo. Stat. Ann. § 35-6-105 (2019).
81
Ga. Code Ann. § 16-12-142(b) (2013); 745 Ill. Comp. Stat. 70/6.1.
82
745 Ill. Comp. Stat. 70/6.1; N.Y. Comp. Codes R. & Regs. tit. 10, § 405.9(b)(10)(establishing refusal rights and civil immunity for
hospitals, "provided that the hospital ... shall inform the patient of appropriate resources for services or information").
83
Ariz. Rev. Stat. Ann. § 36-2154(B) (2020)(requiring a refusing pharmacy, hospital, health professional, or employee to "return to the
patient the patient's written prescription order"); Ga. Code Ann. § 16-12-142(b)(requiring a refusing pharmacist to "immediately return
the prescription to the prescription holder").
84
45 Ill. Comp. Stat. 70/6 (2019)("Nothing in this Act shall relieve a physician from any duty, which may exist under any laws
concerning current standards of medical practice or care, to inform his or her patient of the patient's condition, prognosis, legal
treatment options, and risks and benefits of treatment options, provided, however, that such physician shall be under no duty to
perform, assist, counsel, suggest, recommend, refer or participate in any way in any form of medical practice or health care service that
is contrary to his or her conscience.")
85
Guttmacher Institute, Policies Allowing Providers to Refuse, available at https://www.guttmacher.org/state-policy/explore/refusing-
provide-health-services. STORAGE NAME: h0747b.PPH PAGE: 13
DATE: 1/26/2022
State Policies Allowing Providers to Refuse to Provide Health Care Services
Due to Conscientious Refusal
State
Abortion Contraception Sterilization
Provider Institution Provider Pharmacist Institution Provider Institution
Delaware X X
D.C.
Florida X X X *
Georgia X X X X X
Hawaii X X
Idaho X X X X X X
Illinois X X X * X X X
Indiana X Private
Iowa X Private
Kansas X X *+ *+ X X
Kentucky X X X
Louisiana X X
Maine X X X * Private X X
Maryland X X X X
Massachusetts X Private Private X Private
Michigan X X
Minnesota X Private
Mississippi X X X X X X X
Missouri X X
Montana X Private X Private
Nebraska X X
Nevada X Private
New
Hampshire
New Jersey X Private X Private
New Mexico X X X
New York X X
North Carolina X X
North Dakota X X
Ohio X X
Oklahoma X X STORAGE NAME: h0747b.PPH PAGE: 14
DATE: 1/26/2022
State Policies Allowing Providers to Refuse to Provide Health Care Services
Due to Conscientious Refusal
State
Abortion Contraception Sterilization
Provider Institution Provider Pharmacist Institution Provider Institution
Oregon X Private
Pennsylvania X Private
Rhode Island X X
South Carolina X Private
South Dakota X X X
Tennessee X X X * Private
Texas X Private
Utah X X
Vermont
Virginia X X
Washington X X X X
West Virginia X X X
Wisconsin X X X X
Wyoming X Private
STATE TOTALS 47 44 9 6 8 17 16
(± In Arizona, private hospitals and health facilities may restrict the information that providers give to patients about lawful
health care services if the institution’s objection to providing the information is based on the sincerely held religious or moral
beliefs)
(+ The law permits refusal if the provider “reasonably believes” the drug or device “may result” in an abortion)
(* Broadly worded refusal clause may apply. In Illinois, a state court held that a regulation requiring pharmacies to provide
emergency contraception cannot be enforced against pharmacies that refuse to dispense the medication)
The next chart provides a snapshot of procedural protections in certain conscience laws,
86
Procedural Protections for Providers in Certain Conscience Laws
STATE PROCEDURAL PROTECTIONS
Alabama Civil liability, Criminal prosecution, Discrimination, Education, Government action
Alaska Civil liability
Arizona None
Arkansas Civil liability, Disciplinary action, Government action
California Civil liability, Disciplinary action, Education, Employment action, Education
Colorado N/A
Connecticut None
Delaware Civil liability, Disciplinary action
D.C.* N/A
Florida Civil liability, Disciplinary action
Georgia Civil liability, Disciplinary action
Hawaii Civil liability
Idaho Civil liability, Criminal prosecution, Disciplinary action, Discrimination, Employment
86
Supra, FN 8. STORAGE NAME: h0747b.PPH PAGE: 15
DATE: 1/26/2022
Procedural Protections for Providers in Certain Conscience Laws
STATE PROCEDURAL PROTECTIONS
action, Government action
Illinois Civil liability, Criminal prosecution, Disciplinary action, Discrimination, Education,
Employment action, Funding, Government action, State licensure
Indiana Disciplinary action, Discrimination, Education, Employment action
Iowa Civil liability, Disciplinary action, Discrimination, Education, Employment action,
Government action, State licensure
Kansas Civil liability, Discrimination, Employment action
Kentucky Civil liability, Disciplinary action, Discrimination, Education, Employment action,
Funding, Government action, State licensure
Louisiana Civil liability, Criminal prosecution, Disciplinary action, Discrimination, Education,
Employment action, Government action
Maine Civil liability, Disciplinary action, Discrimination, Education, Employment action,
Government action
Maryland Civil liability, Disciplinary action, Government action
Massachusetts Civil liability, Disciplinary action, Discrimination, Education, Employment action,
Funding, Government action
Michigan Civil liability, Criminal prosecution, Disciplinary action, Discrimination, Employment
action
Minnesota Civil liability, Discrimination, Employment action
Mississippi* N/A
Missouri Civil liability, Discrimination, Education, Employment action, Funding, Government
action
Montana Civil liability, Disciplinary action, Discrimination, Employment action, Funding,
Government action
Nebraska Civil liability, Disciplinary action, Discrimination, Employment action
Nevada Civil liability, Disciplinary action, Employment action
New Hamp.* N/A
New Jersey Civil liability, Criminal prosecution, Disciplinary action, Discrimination
New Mexico Disciplinary action
New York Civil liability, Discrimination
North Carolina Civil liability, Disciplinary action
North Dakota Discrimination
Ohio Civil liability, Disciplinary action
Oklahoma Civil liability, Disciplinary action, Discrimination, Education, Employment action, State
licensure
Oregon Civil liability
Pennsylvania Civil liability, Criminal prosecution, Disciplinary action, Discrimination, Education,
Employment action, Funding, Government action, State licensure
Rhode Island Civil liability, Disciplinary action
South Carolina Civil liability, Disciplinary action, Discrimination, Employment action
South Dakota Civil liability, Employment action, Government action
Tennessee None
Texas Discrimination, Education, Employment action
Utah Civil liability, Disciplinary action, Discrimination, Employment action
Vermont** Government action
Virginia Civil liability, Disciplinary action, Employment action
Washington Discrimination, Employment action
West Virginia None
Wisconsin Civil liability, Disciplinary action, Discrimination, Education, Employment action
Wyoming Civil liability, Disciplinary action, Discrimination, Employment action STORAGE NAME: h0747b.PPH PAGE: 16
DATE: 1/26/2022
(* The state has no abortion conscience law)
(** The state has no abortion refusal law; protects participating providers only.)
Florida Conscience Protection Laws
Florida maintains three statutory conscience protection laws:
Section 381.0051(5), F.S., relating to family planning, allows a physician or other person to
refuse to furnish any contraceptive or family planning service, supplies, or information for
medical or religious reasons.
Section 390.0111(8), F.S., relating to termination of pregnancies, permits any hospital or person
to refuse to participate in an abortion, and protects an objector from any disciplinary or other
recriminatory action as a result of the refusal.
Section 483.918, F.S., relating to genetic counselors, permits a counselor to refuse to
participate in counseling that conflicts with his or her deeply held moral or religious beliefs.
Effect of Proposed Changes
HB 747 creates s. 381.00321, F.S., establishing a health care provider’s or health care payer’s right to
decline to participate in any health care service that violates the provider’s or payer’s conscience as
informed the moral, ethical, or religious beliefs or principles held by the provider or payer. The bill
defines conscience similarly to other states with conscience protection laws – as religious, moral, or
ethical beliefs or principles.
Legislative Findings and Intent
The bill includes two statements of legislative findings and intent related to protecting health care
provider and health care payer right of conscience:
The legislature finds that the right of conscience is a fundamental and inalienable right, and that
threats to that right of health care providers and payers have increased in severity and amount
recently. Certain factors threaten to make the crisis worse unless conscience is restored to its
rightful place. As a patient’s right to decline medical treatment must be respected, so should the
decision of a provider or payer to decline participating in or paying for specific, nonemergency
services that violate their conscience.
The legislature finds that a health care provider or a health care payer should not be compelled
to participate or pay for any health care service that the provider or payer objects to on the basis
of conscience.
Rights of Conscience
The bill establishes the right of a health care provider to not take part in any way in an inpatient or
outpatient test or treatments or other health care-related research that violates the provider’s or
conscience. Under the bill this applies to a:
Provider as defined in s. 408.803.
Clinical laboratory providing services in this state or services to health care providers in this
state, if the clinical laboratory is certified by the Centers for Medicare and Medicaid Services
under the federal Clinical Laboratory Improvement Amendments and the federal rules adopted
thereunder.
Federally qualified health center as defined in 42 U.S.C. s. 1396d(l)(2)(B), as that definition
existed on the effective date of the bill.
Site providing health care services which was established for the purpose of responding to the
COVID-19 pandemic pursuant to any federal or state order, declaration, or waiver.
Health care practitioner as defined in s. 456.001.
Health care professional licensed under part IV of chapter 468.
Home health aide as defined in s. 400.462(15).
Provider licensed under chapter 394 or chapter 397 and its clinical and nonclinical staff
providing inpatient or outpatient services. STORAGE NAME: h0747b.PPH PAGE: 17
DATE: 1/26/2022
Continuing care facility licensed under chapter 651.
Pharmacy permitted under chapter 465.
Student of a health care education program.
This right also applies to payers, which applies to a health insurer that pays for, or arranges for, the
payment of a health care service provided to a patient, whether that payment is made in whole or in
part. A health insurer includes:
An authorized insurer offering health insurance, as defined in s. 624.603, F.S., for individual or
group coverage;
A health maintenance organization, as defined in s. 641.19(12), F.S., issuing coverage through
an individual or group contract; or
A self-insurance plan, as defined in s. 624.031, F.S.
The conscience protections provided by the bill are very broad in whom they protect and apply to a
broad range of medical treatments or research. The protections are not limited to traditionally
controversial procedures, like abortion or sterilization, but rather apply to any medical treatment,
procedure, or research that violates the provider’s or payer’s conscience.
The bill also establishes the right of a health care provider that is a business entity, or a health care
payer holding itself out to the public as a religious entity, and meeting certain criteria
87
to make
employment, staffing, contracting, and credentialing decisions that are consistent with the provider’s or
payer’s religious beliefs.
Liability
The bill makes health care providers and health care payers immune from civil, criminal, or
administrative liability for exercising the provider’s or payer’s right of conscience. Moreover, a provider
or payer that is a business entity is also immune from civil, criminal, or administrative liability for any
claims arising from a violation of the right of conscience of a person employed by, under contract with,
or credentialed by the provider or payer.
Violations
The bill protects a health care provider or health care payer from any actual or threatened adverse
action by a person, as a result of declining to participate in or pay for a particular health care service on
the basis of conscience, by authorizing a civil cause of action against that person. It also protects a
provider or payer from any actual or threatened adverse action for disclosing any information that the
practitioner reasonably believes evinces the following, on the part of an employer’s:
Violation of the act’s provisions;
Any violation of any law, rule, or regulation; or
Gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.
Civil Remedies
The bill authorizes a health care provider or health care payer to bring a civil action for damages,
injunctive relief, or any other appropriate relief for any actual or threatened adverse action due to
declining to participate in a health care service that violates the provider’s or payer’s conscience. Upon
a finding of a violation, a court must award treble damages, and reasonable costs and attorney’s fees.
A court considering the civil action also may award injunctive relief, including reinstatement of a medical
practitioner to his or her previous position, reinstatement of board certification, and relicensure of a
87
Such criteria include stating in its governing documents that the provider entity has a religious purpose or mission and
maintaining internal operating policies and procedures that implement its purpose or mission. STORAGE NAME: h0747b.PPH PAGE: 18
DATE: 1/26/2022
health care provider or health care payer. Any additional burden or expense incurred by another
provider or payer is not a defense to a violation of the bill’s provisions.
The bill provides an effective date of July 1, 2022.
B. SECTION DIRECTORY:
Section 1: Creates s. 381.00321, F.S., relating to rights of conscience of health care providers and
health care payers.
Section 2: Provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
STORAGE NAME: h0747b.PPH PAGE: 19
DATE: 1/26/2022
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not require rule-making to implement its’ provisions.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES