Conscience Protection Act of 2016

Floor Speech

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Ms. DeGETTE. Madam Speaker, I yield myself such time as I may consume.

I rise in opposition to this bill, which is really nothing more than a wolf in sheep's clothing. It is being touted as just simply a conscience clause, but, in fact, it strips away patient protections; it gives employers and healthcare companies the right to override a woman's reproductive healthcare decision; it vastly expands already damaging existing laws that restrict women's abilities to get full insurance coverage; and, just to add, it would clog the courts because it would create private rights of action for healthcare entities to enforce the law.

Now, existing so-called conscience provisions are bad enough, but what they apply to is existing healthcare entities. What this bill would do is something that has never been done before. It would allow employers and others to exercise this right; it would require OCR and DOJ to investigate claims of discrimination; and it would expand the definition of healthcare entities. All of this would just simply interfere with a woman's ability to get accurate information about treatment options and could lead to her being deprived of timely emergency care.

There is already plenty of evidence that current conscience provisions jeopardize women's health and safety. They create confusion about whether healthcare providers are required to offer critical care in emergency situations.

I have heard some heart-wrenching stories about what happened to the women. Let me just tell you one of them. Tamesha Means of Muskegon, Michigan, was only 18 weeks pregnant when her water broke. The nearest hospital, Mercy Health Partners, didn't pursue the normal course of treatment, inducing labor for a pregnancy that wasn't viable, in order to avoid risky complications. Instead, what they did is they gave her painkillers and they sent her home. Over the next 2 days, Tamesha returned to the hospital twice, bleeding and in severe pain, running a high fever, only to get more or less the same response. They were completing the papers to send her home a third time--a third time--when she started to deliver a very premature infant, dead within hours.

Madam Speaker, we would likely see much more needless suffering and endangerment if the bill before us were to pass. It would let employers who sponsor health plans deny their female employees access to medical services to which the employer objects. It would reinforce existing provisions that let health providers opt out of providing such services or even informing people about them.

With all of this in mind, I strongly urge my colleagues to oppose this bad legislation. Every patient should be able to make meaningful, informed decisions about their health care. Congress needs to stop interfering in women's health decisions once and for all.

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Ms. DeGETTE. Mr. Speaker,

Mr. Speaker, when I started this debate, I said that this bill is really a wolf in sheep's clothing. And I meant it.

We have heard throughout this last hour many calls for conscience, many assertions that people shouldn't be forced to perform abortions against their religious convictions. We even just now saw a quote from my hero, Dr. Martin Luther King, Jr., here on the floor, talking about civil rights.

Well, guess what?

As speaker after speaker on our side has pointed out, under current law, providers are not required to provide abortions. This has been the law since the 1970s, when the Church amendment was passed.

In the 1970s, when the Church amendment was passed--it has been law ever since then--I was in high school at that time. It says that providers do not have to provide abortions against their religious convictions, and they have legal recourse if they don't want to do it.

The Church amendment was expanded in 2005 by the so-called Weldon amendment, which has been an appropriations rider since that time. What the Weldon amendment says is that no Federal funding will be made available to government entities that subject a healthcare entity, physicians, hospitals, or HMOs to discrimination because it does not provide, pay for, cover or refer for abortions.

So, in fact, under current law, if somebody is being made to provide abortion services against their will, they have recourse.

And guess what?

In every single example that the majority gave today, they had recourse. And they won.

Let's talk about the Catherine DeCarlo case, the nurse in New York that so many of my colleagues have referred to, who, by her employer, was required, against her ethical convictions, to provide abortion services. She filed a complaint with the Office for Civil Rights, as she is allowed to under law. An investigation ensued.

And guess what?

The hospital was required to take remedial action and change their policy.

Mr. Speaker, I include in the Record the decision from the Department of Health and Human Services entered under the Obama administration giving Ms. DeCarlo these rights. Department of Health & Human Services, February 1, 2013. Re Reference Number: 10-109676 Matthew S. Bowman, Esq., Alliance Defending Freedom, Washington, DC. David Reich, MD, Interim President, The Mount Sinai Hospital, New York, NY.

Dear Mr. Bowman and Dr. Reich: The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), has completed its investigation of the above- referenced complaint filed by the Alliance Defending Freedom, formerly known as the Alliance Defense Fund (the complainant), on behalf of Catherina Lorena Cenzon-DeCarlo (the affected party) against The Mount Sinai Hospital (the Hospital). The complaint alleges that, on May 24, 2009, the Hospital forced the affected party to assist in the performance of an abortion procedure despite her express religious objections. The complaint also alleges that, because of the affected party's initial refusal to participate in the May 24, 2009 procedure, the Hospital discriminated against her by: (i) reducing the number of on- call shifts she received for the month of August 2009; and (ii) asking her to sign a statement of her willingness to participate in abortion procedures in emergencies as a condition to being assigned more on-call shifts for September 2009 than she was assigned for August 2009.

OCR initiated an investigation of this complaint consistent with its authority under the Church Amendments, 42 U.S.C. Sec. 300a-7; Section 245 of the Public Health Service Act, 42 U.S.C. Sec. 238n; and the Weldon Amendment, Consolidated Appropriations Act, 2008, Public Law 110-161, Div. G, Sec. 508(d), 121 Stat. 1844, 2209 (collectively referred to as the Federal health care provider conscience statutes) and their implementing regulation, 45 C.F.R. Part 88.

According to information available on its website, the Hospital is a 1,171-bed tertiary-care teaching facility that oversees approximately 58,000 patients receiving inpatient care, 530,000 outpatient visits, and 98,000 emergency room visits each year. The Hospital is part of The Mount Sinai Medical Center. The Hospital receives federal financial assistance from HHS under the Public Health Service Act and through its participation in Medicare and Medicaid.

During the course of the investigation, OCR reviewed information submitted by the complainant and the Hospital. OCR interviewed the complainant, the affected party, Hospital staff and administration, and physicians providing services at the Hospital. OCR also coordinated the handling of the complaint with the staff of the HHS program(s) from which the Hospital receives HHS funding.

The complainant indicated that the affected party has been employed in the Hospital's Perioperative Services Care Center since August 9, 2004, and has strongly-held religious beliefs and moral convictions that she should not participate in abortion procedures. During the course of its investigation, OCR learned that elective abortion procedures are scheduled on weekdays at the Hospital, staffed by individuals who have agreed in advance to participate in such procedures. Urgent/ non-elective abortion procedures that occur over the weekend are staffed by Operating Room (O.R.) nurses and surgical technicians who have signed up and are assigned to be ``on call'' for that specific weekend. The complainant indicated that the affected party was on on-call and called to the O.R. for a procedure to take place during the morning of Sunday, May 24, 2009. The complainant informed OCR that, shortly after the affected party learned that the case was an abortion procedure, she reminded her supervisor of her religious objection and asked to be excused from the case, but the Hospital insisted that she assist in the procedure.

During OCR's investigation of this matter, the Hospital stated that it did not force the affected party to assist in the performance of an abortion procedure, and that it did not discriminate or retaliate against her for her initial refusal to assist in the abortion procedure. Nonetheless, the Hospital also indicated that, since the events of May 24, 2009, it has implemented measures to address the administrative issues that prevented the Hospital from locating a replacement nurse for the affected party on the day of the procedure.

In particular, OCR learned that the Hospital adopted a revision to its O.R. scheduling policies and procedures, effective August 2009, which requires abortion procedures to be scheduled with the O.R. with as much notice as possible. The revised policy also establishes a process wherein the Hospital maintains: (i) contact information for the O.R. nurses and surgical technicians, and (ii) a list indicating which nurses and surgical technicians are willing to participate, and which are not willing to participate, in abortion procedures. Further, the revised policy instructs O.R. scheduling staff and on-duty nurse managers that, in the event on-call O.R. nurses or surgical technicians must be called in for an abortion procedure, the O.R. scheduling staff must inform the on-duty nurse manager. If the scheduled on-call O.R. nurse or surgical technician is listed as being unwilling to assist, the scheduling staff (and the nurse manager) will use the aforementioned lists to contact and secure an O.R. nurse or surgical technician, as appropriate, who is willing to assist in the performance of an abortion.

Subsequently as a result of OCR's investigation, the Hospital has agreed to take certain other actions to ensure and strengthen its commitment and ongoing compliance with the applicable Federal health care provider conscience statutes. OCR notes that the Hospital has taken significant affirmative steps to address the compliance concerns identified in the complaint, and the following listed actions provide additional safeguards for objecting health care personnel while ensuring patients have access to needed health care. Specifically, the Hospital has agreed in writing to:

1. Comply with the provisions of the Church Amendments, 42 U.S.C. Sec. 300a-7 et seq.

2. Continue to use its best efforts to ensure that non- objecting health care personnel are available to perform their job duties with respect to abortion procedures, including any abortion procedures that occur over the weekend;

3. Revise Human Resources Policy No. 15.3, titled ``Exclusion from Patient Care--Employee Rights,'' to state that ``The Mount Sinai Hospital does not discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or in the extension of staff or other privileges to 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 in the performance of such a sterilization procedure or abortion on the grounds that his performance or assistance would be contrary to his religious beliefs or moral convictions.''

4. Continue to post the Hospital's Human Resources Policy No. 15.3, titled ``Exclusion from Patient Care--Employee Rights,'' electronically on the Hospital's intranet and post in hard copy on the Operating Room notice board; and

5. Train O.R. managers, nurses and surgical technicians about the Hospital's obligations to comply with the Church Amendments and train Surgical Admitting Planning office administrative staff to ensure that O.R. nurses' and surgical technicians' objecting or non-objecting status is properly recorded.

In addition, OCR provided the Hospital with technical assistance regarding its grievance procedure and its list identifying whether O.R. nurses and surgical technicians are willing or not to participate in abortion procedures. The Hospital incorporated OCR's technical assistance, further ensuring the Hospital's compliance with the applicable Federal health care provider conscience statutes.

Based on the above-described commitments and actions, OCR finds that the Hospital took steps, subsequent to May 24, 2009, and during the course of OCR's investigation, which have sufficiently addressed and resolved the allegation regarding the May 24, 2009 procedure.

With respect to the allegation that the Hospital discriminated against the affected party by reducing the amount of weekend on-call shifts to which she was assigned for August 2009, the evidence gathered during OCR's investigation did not support such a finding. The affected party asserted that there were multiple sign-up sheets and she had signed up for approximately 7-8 on-call shifts for August 2009. The Hospital indicated that there was only one set of sign-up sheets, and the affected party signed up for a single shift, which the Hospital assigned to her. While the Hospital's documentation does not definitively establish that there was not a second set of sign-up sheets for August 2009, OCR's interviews of multiple O.R. nurses indicate that O.R. nurses and surgical technicians signed up at a single location on a single set of sign-in sheets. Accordingly, OCR has determined that there is insufficient evidence to conclude that the Hospital discriminated against the affected party when assigning on-call shifts for the month of August 2009.

The complainant also alleged that the Hospital discriminated against the affected party by asking her to sign a statement of her willingness to participate in abortion procedures in emergencies as a condition to being assigned more on-call shifts for September 2009 than she was assigned for August 2009. After interviewing the affected party and other staff involved in the alleged conversations, OCR found that at least one conversation occurred on or about July 16, 2009, involving a request for the affected party to sign a statement. However, there was substantial dispute as to the substantive content of any conversation, including the content of any requested statement. Based on our review of the facts and circumstances of this matter, including that the affected party did not agree to sign any statement and the Hospital subsequently assigned her on-call shifts for September 2009 after she signed up for them, OCR has determined that there is insufficient evidence to substantiate the claim that the Hospital discriminated against the affected party by asking her to sign such a statement.

Further, on February 4, 2011, the complainant contacted OCR to report an alleged act of retaliation by the Hospital against the affected party for the filing of this complaint. Following the May 24, 2009 procedure that is the subject of this matter, the affected party sought assistance from the Employee Assistance Program (EAP) at the Hospital. The complainant alleged that, on February 3, 2011, the Hospital informed the affected party that it would not provide her with a copy of her EAP records unless she first obtained a court order, because the affected party had filed OCR and judicial complaints against the Hospital. A claim that the Hospital's actions with respect to the affected party's EAP records amounts to another act of discrimination under the Church Amendments is not supported by the evidence. During OCR's investigation of the complainants associated HIPAA Privacy Rule complaint, TN 11-123374, OCR learned that all employees of the Hospital who seek to obtain a copy of their EAP records must first obtain a court order or subpoena, regardless of whether: (i) the employee has or has not filed a complaint or lawsuit against the Hospital, or (ii) the employee has or has not refused to assist with an abortion procedure, and irrespective of what the employee's religious beliefs are about abortion.

This determination of compliance is not intended, nor should it be construed, to cover any issues, regarding the Hospital's compliance status with the Church Amendments, that are not specifically addressed in this letter. It neither covers issues or authorities not specifically addressed herein nor does it preclude future determinations of compliance that are based on subsequent investigations.

Please take all necessary steps to ensure that no adverse action is taken against the complainant, the affected party, or any other individual for the filing of this complaint, providing information to OCR, or otherwise participating in this investigation.

Under the Freedom of Information Act, it may be necessary for OCR to release this document and related correspondence and records upon request. In the event OCR receives such a request, we will seek to protect, to the extent provided by law, personal information the disclosure of which would constitute an unwarranted invasion of privacy.

If you have additional questions or concems, please contact Frank J. Musumici, M.S., Supervisory Equal Opportunity Specialist. Sincerely, Linda C. Colon, Regional Manager.

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Ms. DeGETTE. Now, let's talk about the nine Nassau County nurses apparently required by their employer to provide these services. All of those nurses were reinstated to their job after they made a complaint.

According to any example that we have gotten, these people have had recourse under current law.

So what does this bill do?

This bill doesn't give anybody any more conscientious ability to object.

What this bill does is it allows whole new classes of people to refuse to provide services to the women of America. It allows employers, it allows healthcare plans and health plan sponsors to refuse to provide women the services they need.

The only people who are going to be hurt by this are the patients. And I will tell you what, if you want to talk about civil rights, talk about the civil rights of those patients.

Talk about Mindy Swank, who is a woman from Illinois. She was denied care by a Catholic hospital when her water broke just 20 weeks into her pregnancy. Even though her life would have been endangered by continuing the pregnancy and it could have threatened her ability to have more children in the future, the hospital she visited not only refused to treat her, but it refused to provide documentation that her abortion was medically necessary so somebody else could treat her.

She was forced to wait weeks, returning to the hospital four times with bleeding, until finally she was deemed sick enough to induce labor and give birth to a baby who died without ever regaining consciousness. Talk about her civil rights. That is what we are thinking about today.

So I have got to say--I am a deeply religious person myself--I believe that we should give people their rights to their religious expression, and we do that under current law. I don't think that taking women's rights to health care away does anything to help with that situation.

Here is one more thing. In case you didn't know, President Obama issued an order today saying that he is going to veto this bill if, in the unlikely event, it ever passes his desk.

So what are we doing here today? The majority has announced that they are going out of session for 7 weeks at the end of this week. They are not going to deal with the Zika funding. They are not going to deal with gun safety legislation, which would save many Americans' lives. They are not going to finish the appropriations bills, on and on and on.

We have spent a whole hour of our valuable time today debating about something that is not only unnecessary from a conscience point of view, but that could endanger women's lives, and we are doing nothing to help the lives of the millions and millions of Americans that need it.

It is not the right focus. It is not the right time. It is not the right legislation. I urge every single one of my colleagues to examine their conscience and to vote ``no'' on this poorly thought-out piece of legislation.

I yield back the balance of my time.

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