The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 1580
INTRODUCER: Rules Committee and Senator Trumbull
SUBJECT: Protections of Medical Conscience
DATE: April 20, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Looke Brown HP Favorable
2. Looke Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1580 establishes rights of conscience for health care providers and payors. The bill
provides legislative intent and provides that a health care provider or payor has the right to opt-
out of participation in or payment for a health care service on the basis of a conscience-based
objection (CBO). The bill establishes notification requirements for opting-out and prohibits a
payor from opting-out of paying for a service it is contractually obligated to cover during a plan
year. The bill also specifies that CBOs are limited to specific health care services, that the bill
may not be construed to waive or modify any duty a provider or payor may have for other health
care services that do not violate a provider’s or payor’s conscience, and that nothing in the bill
allows a health care provider or payor to opt-out of providing health care services to any patient
or potential patient because of that patient’s or potential patient’s race, color, religion, sex, or
national origin.
The bill prohibits health care providers from being discriminated against or suffering adverse
action for declining to participate in a health care service based on a CBO. The bill also provides
whistle-blower protections for providers or payors in specific situations and specifies that the bill
may not be construed to override any requirement to provide emergency medical treatment in
accordance with federal or state law.
The bill allows health care providers or payors to file complaints of violations to the Attorney
General (AG) and authorizes the AG to bring a civil action for appropriate relief. The bill also
provides civil immunity for health care providers and payors solely for declining to participate in
a health care service on the basis of a conscience-based objection, with some exceptions.
REVISED: BILL: CS/SB 1580 Page 2
Additionally, the bill prohibits a board,
1
or the Department of Health (DOH) if there is no board,
from taking disciplinary action against a health care practitioner solely because he or she has
spoken or written publicly about a health care service or public policy, including on a social
media platform, as long as the speech or written communication does not provide advice or
treatment to a specific patient or patients and does not separately violate any other applicable law
or rule. The bill also authorizes a board within the DOH to revoke approval of any specialty
board for revoking the certification of an individual for the same reason.
The bill provides that its provisions are severable and provides an effective date of July 1, 2023.
II. Present Situation:
Medical Conscience
The Church Amendments
The conscience provisions contained in 42 U.S.C. 300a-7 (collectively known as the “Church
Amendments”) were enacted at various times during the 1970s in response to debates over
whether receipt of federal funds required the recipients of such funds to perform abortions or
sterilizations. The first conscience provision in the Church Amendments, 42 U.S.C. 300a-7(b),
provides that “[t]he receipt of any grant, contract, loan, or loan guarantee under [certain statutes
implemented by the Department of Health and Human Services] by any individual or entity, does
not authorize any court or any public official or other public authority to require:”
The individual to perform or assist in a sterilization procedure or an abortion, if it would be
contrary to his or her religious beliefs or moral convictions;
The entity to make its facilities available for sterilization procedures or abortions, if the
performance of sterilization procedures or abortions in the facilities is prohibited by the
entity on the basis of religious beliefs or moral convictions; or
The entity to provide personnel for the performance or assistance in the performance of
sterilization procedures or abortions, if it would be contrary to the religious beliefs or moral
convictions of such personnel.
The second conscience provision in the Church Amendments, 42 U.S.C. 300a-7(c)(1), prohibits
any entity that receives a grant, contract, loan, or loan guarantee under certain statutes from
discriminating against any physician or other health care personnel in employment, promotion,
termination of employment, or the extension of staff or other privileges because the individual
“performed or assisted in the performance of a lawful sterilization procedure or abortion, because
he refused to perform or assist in the performance of such a procedure or abortion on the grounds
that his performance or assistance in the performance of the procedure or abortion would be
contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral
convictions respecting sterilization procedures or abortions.”
The third conscience provision, contained in 42 U.S.C. 300a-7(c)(2), prohibits any entity that
receives a grant or contract for biomedical or behavioral research under any program
1
Under s. 456.001(1), F.S., a “board” is any board or commission, or other statutorily created entity, to the extent such entity
is authorized to exercise regulatory or rulemaking functions within the Department of Health or the department’s Division of
Medical Quality Assurance. Most of Florida’s licensed health care professions have a board. BILL: CS/SB 1580 Page 3
administered by the U.S. Department of Health and Human Services (HHS) from discriminating
against any physician or other health care personnel in employment, promotion, termination of
employment, or extension of staff or other privileges “because he performed or assisted in the
performance of any lawful health service or research activity, because he refused to perform or
assist in the performance of any such service or activity on the grounds that his performance or
assistance in the performance of such service or activity would be contrary to his religious
beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting
any such service or activity.”
The fourth conscience provision, 42 U.S.C. 300a-7(d), provides that “[n]o individual shall be
required to perform or assist in the performance of any part of a health service program or
research activity funded in whole or in part under a program administered by [the HHS] if his
performance or assistance in the performance of such part of such program or activity would be
contrary to his religious beliefs or moral convictions.”
The final conscience provision contained in the Church Amendments, 42 U.S.C. 300a-7(e),
prohibits any entity that receives a grant, contract, loan, loan guarantee, or interest subsidy under
certain Departmentally-implemented statutes from denying admission to, or otherwise
discriminating against, “any applicant (including applicants for internships and residencies) for
training or study because of the applicant's reluctance, or willingness, to counsel, suggest,
recommend, assist, or in any way participate in the performance of abortions or sterilizations
contrary to or consistent with the applicant's religious beliefs or moral convictions.”
2
Public Health Service Act Section 245
Enacted in 1996, section 245 of the Public Health Service Act (PHS Act) 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;”
Refuses to make arrangements for such activities; 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 make
arrangements for the provision of such training.”
For the purposes of this protection, the statute defines “financial assistance” as including, “with
respect to a government program,” “governmental payments provided as reimbursement for
carrying out health-related activities.” In addition, PHS Act Sec. 245 requires that, in
determining whether to grant legal status to a health care entity (including a state's determination
of whether to issue a license or certificate), the federal government and any state or local
government receiving federal financial assistance must deem accredited any post-graduate
physician training program that would be accredited, but for the reliance on an accrediting
2
Safeguarding the Rights of Conscience as Protected by Federal Statutes: A Proposed Rule by the HHS, 1/5/23, available at
https://www.federalregister.gov/documents/2023/01/05/2022-28505/safeguarding-the-rights-of-conscience-as-protected-by-
federal-statutes, (last visited April 1, 23). BILL: CS/SB 1580 Page 4
standard that, regardless of whether such standard provides exceptions or exemptions, requires
an entity:
To perform induced abortions; or
To require, provide, or refer for training in the performance of induced abortions, or make
arrangements for such training.
3
Medicare and Medicaid
Federal Medicare and Medicaid law includes certain conscience provisions as well. In particular,
the Balanced Budget Act of 1997, Public Law 105-33, 111 Stat. 251 (1997), prohibits Medicaid
managed care 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.
However, it also provides 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. Such organization or
plan must, however, provide sufficient notice of its moral or religious objections to prospective
enrollees.
4
Weldon Amendment
The Weldon Amendment, originally adopted as section 508(d) of the Labor-HHS Division
(Division F) of the 2005 Consolidated Appropriations Act,
5
has been readopted (or incorporated
by reference) in each subsequent legislative measure appropriating funds to HHS.
The Weldon Amendment provides that “[n]one 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.” It also defines “health care entity” to include “an individual physician
or other health care professional, a hospital, a provider-sponsored organization, a health
maintenance organization, a health insurance plan, or any other kind of health care facility,
organization, or plan.”
6
The Patient Protection and Affordable Care Act (ACA)
Section 1553 of the federal ACA provides that the federal government, any state or local
government, and any health care provider that receives federal funding under the ACA, or any
health plan created under the ACA, may not subject an individual or health care entity to
discrimination on the grounds that the individual or entity does not provide services for the
purpose of causing or assisting in the death of any individual, including through assisted suicide,
euthanasia, and mercy killing.
3
Id.
4
Supra note 2.
5
Public Law 108-447, 118 Stat. 2809, 3163 (Dec. 8, 2004)
6
Supra note 2. BILL: CS/SB 1580 Page 5
Section 1303 provides that a state may choose to prohibit abortion coverage in its qualified
health plans and that such a plan is not required to provide abortion coverage as part of its
“essential health benefits.” However, a qualified health plan that declines to provide abortion
coverage must provide notice of this exclusion to potential enrollees, 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. Section 1303 also states that nothing in the ACA shall be
construed to preempt state laws on abortion or federal laws on conscience protection, willingness
or refusal to provide abortion, and discrimination based on that willingness or refusal to provide,
pay for, cover, or refer for abortion or to provide or participate in training to provide abortion, 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.
7
State Medical Conscience Laws
According to the Guttmacher Institute:
Forty-six states allow some health care providers to refuse to provide abortion services.
o All of these states permit individual health care providers to refuse to provide abortion
services.
o Forty-four states allow health care institutions to refuse to provide abortion services;
o Thirteen limit the exemption to private health care institutions; and
o One state allows only religious health care entities to refuse to provide such services.
Twelve states allow some health care providers to refuse to provide services related to
contraception.
o Nine states allow individual health care providers to refuse to provide services related to
contraception.
o Six states explicitly permit pharmacists to refuse to dispense contraceptives. (Six
additional states have broad refusal clauses that do not specifically include pharmacists,
but may apply to them.)
o Eight states allow health care institutions to refuse to provide services related to
contraception; and
o Five states limit the exemption to private entities.
Eighteen states allow some health care providers to refuse to provide sterilization services.
o Seventeen states allow individual health care providers to refuse to provide sterilization
services.
o Sixteen states allow health care institutions to refuse to provide sterilization services;
o Four limit the exemption to private entities.
8
Freedom of Speech
“Congress shall make no law … abridging the freedom of speech.”
9
The First Amendment of the U.S. Constitution protects the right to freedom of expression from
government interference. The First Amendment is applicable to the states through the Due
7
Supra note 2.
8
For details, please see: Refusing to Provide Health Services, Guttmacher Institute, Updated March 1, 2023, available at
https://www.guttmacher.org/state-policy/explore/refusing-provide-health-services, (last visited April 1, 2023).
9
U.S. CONST. amend. I. BILL: CS/SB 1580 Page 6
Process Clause of the Fourteenth Amendment.
10
“[T]he First Amendment assures the broadest
tolerable exercise of free speech, free press, and free assembly, not merely for religious purposes,
but for political, economic, scientific, news, or informational ends as well.”
11
It is well established that a government regulation based on the content of speech is
presumptively invalid and will be upheld only if it is necessary to advance a compelling
governmental interest, precisely tailored to serve that interest, and is the least restrictive means
available for establishing that interest.
12
The government bears the burden of demonstrating the
constitutionality of any such content-based regulation.
13
The U.S. Supreme Court has noted that
Even when considering some instances of defamation and fraud, moreover,
the Court has been careful to instruct that falsity alone may not suffice to
bring the speech outside the First Amendment. The statement must be a
knowing or reckless falsehood.
14
With regard to speech made on Internet platforms, the Supreme Court has stated, “We agree with
[the District Court’s] conclusion that our cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to this medium.”
15
Professional Speech
In 2018, the U.S. Supreme Court issued an opinion underscoring the concept that professional
speech is not a separate category of speech that falls outside the protection of First Amendment
freedom of speech. The Court stated that the professional speech of individuals who perform
personalized services that require a professional license from the state is not exempt from the
rule that content-based regulations of speech are subject to strict scrutiny.
16
Justice Clarence
Thomas delivered the opinion of the court, writing
The dangers associated with content-based regulations of speech are also
present in the context of professional speech. As with other kinds of speech,
regulating the content of professionals’ speech poses the inherent risk that
the Government seeks not to advance a legitimate regulatory goal, but to
suppress unpopular ideas or information. … When the government polices
the content of professional speech, it can fail to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail.
17
10
See De Jonge v. Oregon, 299 U.S. 353, 364–65(1937) (incorporating right of assembly); Gitlow v. New York, 268 U.S.
652, 666 (1925) (incorporating right of freedom of speech).
11
Douglas v. City of Jeannette (Pennsylvania), 319 U.S. 157, 179, (1943) (Jackson, J., concurring in result).
12
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004).
13
Id. at 660.
14
See U.S. v. Alvarez, 567 U.S. 709, 719 and New York Times v. Sullivan, 376 U.S. 254 (1964).
15
Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).
16
Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2365 (2018).
17
Id. at 234. BILL: CS/SB 1580 Page 7
III. Effect of Proposed Changes:
Medical Conscience Provisions
CS/SB 1580 creates s. 381.00321, F.S., to provide rights of conscience for health care providers
and health care payors.
Legislative Intent
The bill provides that it is the intent of the Legislature to provide the right of medical conscience
for health care providers and payors to ensure they can care for patients in a manner consistent
with their moral, ethical, and religious convictions; and that it is the intent of the Legislature that
licensed health care providers and payors be free from threat of discrimination for providing
conscience-based health care.
Definitions
The bill defines the following terms:
“Adverse action” to mean the discharge, transfer, demotion, discipline, suspension,
exclusion, revocation of privileges, withholding of bonuses, or reduction in salary or
benefits; any action that may negatively impact the advancement or graduation of a student,
including, but not limited to, the withholding of scholarship funds; or any other disciplinary
or retaliatory action taken against a health care provider.
“Conscience-based objection” to mean an objection based on a sincerely held religious,
moral, or ethical belief. Conscience with respect to entities is determined by reference to the
entities’ governing documents; any published ethical, moral, or religious guidelines or
directives; mission statements; constitutions; articles of incorporation; bylaws; policies; or
regulations.
“Department” to mean the Department of Health (DOH).
“Health care payor” to mean a health insurer, an employer, a health care sharing
organization, a health plan, a health maintenance organization, a management services
organization, or any other entity that pays for, or arranges for the payment of, any health care
service, whether such payment is in whole or in part.
“Health care provider” means:
o Any person or entity licensed under chs. 394, 400, 401, 457, 458, 459, 460, 461, 462,
463, 464, 465, 466, 467, 478, 480, 484, 486, 490, or 491, F.S.
o Parts I, II, and II of ch. 483, F.S.
o Parts I, II, III, IV, V, X, XIII, or XIV of chapter 468;
o Any provider as defined in s. 408.803;
o A continuing care facility licensed under chapter 651;
o A pharmacy permitted under chapter 465; or
o Any student enrolled in an educational institution who is seeking to become a health care
provider.
“Health care service” to mean medical research, medical procedures, or medical services
including, but not limited to, testing; diagnosis; referral; dispensing or administering any
drug, medication, or device; psychological therapy or counseling; research; therapy; record-
making procedures; set up or performance of a surgery or procedure; or any other care or
services performed or provided by any health care provider. BILL: CS/SB 1580 Page 8
“Participate” or “participation” to mean to pay for or take part in any way in providing or
facilitating any health care service or any part of such service.
“Right of medical conscience” to mean the right of a health care provider or health care
payor to abide by sincerely held religious, moral, or ethical beliefs. With respect to health
care providers or payors that are entities, such beliefs are determined by reference to the
entities’ governing documents; any published ethical, moral, or religious guidelines or
directives; mission statements; constitutions; articles of incorporation; bylaws; policies; or
regulations.
Right to Opt-out
The bill provides that a health care provider or health care payor has the right to opt-out of
participation in or payment for any health care service on the basis of a conscience-based
objection (CBO). A health care provider must, at the time of the CBO or as soon as practicable
thereafter, provide written notice of his or her CBO to the health care provider’s supervisor or
employer, if applicable, and document his or her CBO to a particular health care service in the
patient’s medical file. Additionally, if a patient, or potential patient, when attempting to schedule
an appointment with the provider, indicates to the provider that he or she is seeking a specific
health care service for which the provider has a conscience-based objection, the provider must
notify the patient that he or she does not provide such service before scheduling the appointment.
A health care provider who is a student must provide written notice of his or her CBO to the
educational institution at the time the CBO is made or as soon as practicable thereafter.
The bill limits the exercise of the right of medical conscience to CBOs to a specific health care
service and prohibits a health care payor from declining to pay for a health care service it is
contractually obligated to cover during a plan year. The bill specifies that these provisions may
not be construed to waive or modify any duty a health care provider or health care payor may
have to provide or pay for other health care services that do not violate the rights of conscience
to waive or modify any duty to provide any informed consent required by law, or to allow a
health care provider or payor to opt-out of providing health care services to any patient or
potential patient because of that patient’s or potential patient’s race, color, religion, sex, or
national origin.
Prohibition on Discrimination
The bill provides that a health care provider may not be discriminated against or suffer adverse
action because the health care provider declined to participate in a health care service on the
basis of a CBO.
Whistleblower Protections
The bill also prohibits a health care provider or health care payor from being discriminated
against with respect to:
Providing or causing to be provided, or intending to provide or cause to be provided,
information relating to any violation of or any act or omission the health care provider or
health care payor reasonably believes to be a violation of any provision of the bill to his or
her employer, the Attorney General, the DOH, any other state agency charged with BILL: CS/SB 1580 Page 9
protecting health care rights of conscience, the HHS, the Office of Civil Rights, or any other
federal agency charged with protecting health care rights of conscience;
Testifying or intending to testify in a proceeding concerning such violation; or
Assisting or participating in or intending to assist or participate in such a proceeding.
Under the bill, unless the disclosure is specifically prohibited by law, a health care provider or
health care payor may not be discriminated against in any manner for disclosing information that
the health care provider or health care payor reasonably believes constitutes:
A violation of any law, rule, or regulation;
A violation of any ethical guidelines for the provision of any medical procedure or service; or
A practice or method of treatment that may put patient health at risk or present a substantial
and specific danger to public health or safety.
Enforcement
The bill allows a health care provider or health care payor to file a complaint with the AG
alleging any violation of this section. If the AG determines there has been a violation of this
section, the AG may commence a civil action for damages, injunctive relief, or any other
appropriate relief, including attorney fees. For the purpose of conducting an investigation, the
AG may administer oaths, take depositions, make inspections when authorized by law, issue
subpoenas supported by affidavit, serve subpoenas and other process, and compel the attendance
of witnesses and the production of books, papers, documents, and other evidence. The bill allows
the Department of Legal Affairs to adopt rules to implement this provision.
Civil Immunity
The bill provides that a health care provider or health care payor may not be held civilly liable
solely for declining to participate in or pay for a health care service on the basis of a conscience-
based objection. However, bill specifies that this provision does not limit a person′s ability to
recover damages or other relief under any other applicable law due to behavior that constitutes a
violation of this section or that is not related to a conscience-based objection.
Emergency Treatment
The bill specifies that nothing in these provisions may be construed to override any requirement
to provide emergency medical treatment in accordance state law or the federal Emergency
Medical Treatment and Active Labor Act, 42 U.S.C. s. 1395dd.
Free Speech Provisions
CS/SB 1580 creates s. 456.61, F.S., to prohibit a board, or the DOH if there is no board, from
taking disciplinary action against a health care practitioner’s license, or denying a license to an
individual, solely because the individual has spoken or written publicly about a health care
service, including, but not limited to, speech through the use of a social media platform as
defined in s. 501.2041, F.S., provided that the individual is not using such speech or written
communication to provide medical advice or treatment to a specific patient or patients, and
provided that such speech or written communication does not separately violate any other
applicable law or rule. Additionally, the bill allows a board within the jurisdiction of the DOH to BILL: CS/SB 1580 Page 10
revoke its approval of a specialty board or other recognizing agency if the specialty board or
other recognizing agency revokes the certification of an individual solely because the individual
has spoken or written publicly about a health care service or public policy, including, but not
limited to, speech through the use of a social media platform as defined in s. 501.2041, F.S.,
provided such individual was not providing medical advice or treatment to a specific patient and
provided such speech did not separately violate any other applicable law.
Severability
The bill provides that if any provision of the bill, once enacted, or its application to any person or
circumstance is held invalid, the invalidity does not affect other provisions or applications which
can be given effect without the invalid provision or application, and to this end the provisions of
the bill are severable.
Effective Date
The bill provides an effective date of July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None. BILL: CS/SB 1580 Page 11
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates the following sections of the Florida Statutes: 381.00321 and 456.61.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Rules on April 19, 2023:
The CS:
Adds a requirement to notify a patient prior to scheduling an appointment if the
patient requests a service for which the provider has a conscience based objection;
Amends the definition of “health care service” to ensure that the definition is not
overly broad and adds a specific provision prohibiting a health care provider or payor
from opting-out of providing a health care service to a patient based on the patient’s
race, color, religion, sex, or national origin.
Adds a provision granting civil immunity to providers and payors solely for declining
to participate or pay for a health care service based on a conscience-based objection.
Specifies that the civil immunity does not cover behavior that violates the section or
that is not related to a conscience-based objection.
Adds a provision allowing the Attorney General to bring a civil enforcement action
based on a complaints of violations of the section. This power is similar to the AGs
authority to bring such complaints for violations of civil rights in s. 760.51, F.S.
Adds a provision allowing boards within the jurisdiction of the Department of Health
to remove a specialty board’s approval if the specialty board revokes the certification
of an individual solely because the individual has spoken or written publicly about a
health care service or public policy.
Adds Legislative intent language;
Defines the term “right of medical conscience” and conforms the use of similar terms
to the definition throughout the bill;
Removes several unused definitions;
Amends the free-speech provision to include protections for speaking publicly about
public policies. BILL: CS/SB 1580 Page 12
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.