HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, November 20, 2004

Politics of Abortion Snags Spending Bill.

Conference negotiators are close to a deal on the Consolidated Appropriations Bill (H.R. 4818), an omnibus $388 billion spending package that is needed to keep the federal government running after midnight tonight.  One of the last issues to resolve is a rider that, according to the L.A. Times, "would make it easier for healthcare providers to refuse to provide abortions or abortion referrals."  Nine women senators (8 Democrats and Olympia Snowe (R-Me.)) wrote to Sen. Ted Stevens (R-Alaska), chairman of the Senate Appropriations Committee, voicing their opposition to the provision: "Should this provision become law, federal, state or local government may no longer require any institutional or individual healthcare provider to provide, pay for or refer abortion services. This will mean that medical providers in hospitals and clinics across the country will likely be victims of demonstrations and intimidation as this provision allows that they be forbidden from providing abortion care to women who need it, and also to deny women referrals to another provider."  (The full text of the senators' letter is on Sen. Diane Feinstein's web site (PDF).)

The paper also reports NARAL's opposition to the provision: "NARAL Pro-Choice America, an abortion rights group, also assailed the provision, contending that it would bar physicians at health maintenance organizations, for-profit hospitals and others from even talking to their patients about abortion. The group called the provision a 'backdoor gag rule.'"  (NARAL's press release is here.)

The provision itself is variously and confusingly described by parties for and against in a Washington Post article this morning: "Under the provision, sponsored by Rep. David Joseph Weldon (R-Fla.), state governments could lose federal funds if they were found to discriminate against any 'health care entity' that opts not to provide abortion services or referrals. Supporters of the change say it would protect Catholic hospitals and health insurers from 'harassment' by state officials. In a letter yesterday, the nine senators said it would expose abortion providers to more intimidation by antiabortion groups."

According to the ACLU web site, the "Federal Refusal Clause" -- which NARAL says has twice been inserted by the House into bills that have (until now) been rejected by the Senate -- is S.1397, which would amend 42 U.S.C. § 238n to read as follows [changes indicated in boldface]:

§ 238n. Abortion-related discrimination in governmental activities regarding training and licensing of physicians licensing, and practice of physicians and other health care entities

(a) In general
The Federal Government, and any State or local government that receives Federal financial assistance, may not subject any health care entity to discrimination on the basis that—
     (1) the entity refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions to perform, provide coverage of, or pay for induced abortions, or to provide referrals for such training or such abortions;
     (2) the entity refuses to make arrangements for any of the activities specified in paragraph (1); or
     (3) the entity 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.

(b) Accreditation of postgraduate physician training programs
     (1) In general
In determining whether to grant a legal status to a health care entity (including a license or certificate), or to provide such entity with financial assistance, services or other benefits, the Federal Government, or any State or local government that receives Federal financial assistance, shall deem accredited any postgraduate physician training program that would be accredited but for the accrediting agency’s reliance upon an accreditation standards [1] that requires an entity to perform an induced abortion or require, provide, or refer for training in the performance of induced abortions, or make arrangements for such training, regardless of whether such standard provides exceptions or exemptions. The government involved shall formulate such regulations or other mechanisms, or enter into such agreements with accrediting agencies, as are necessary to comply with this subsection.
     (2) Rules of construction
          (A) In general
With respect to subclauses (I) and (II) of section 292d (a)(2)(B)(i) of this title (relating to a program of insured loans for training in the health professions), the requirements in such subclauses regarding accredited internship or residency programs are subject to paragraph (1) of this subsection.
          (B) Exceptions
This section shall not—
               (i) prevent any health care entity from voluntarily electing to be trained, to train, or to arrange for training in the performance of, to perform, or to make referrals for induced abortions; or
               (ii) prevent an accrediting agency or a Federal, State or local government from establishing standards of medical competency applicable only to those individuals who have voluntarily elected to perform abortions.

(c) Definitions
For purposes of this section:
     (1) The term “financial assistance”, with respect to a government program, includes means governmental payments provided as reimbursement for carrying out health-related activities.
     (2) The term “health care entity” includes an individual physician or other health professional, a postgraduate physician training program, and a participant a participant in a program of training in the health professions , 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.
     (3) The term “postgraduate physician training program” includes a residency training program.

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