In its eagerness to roll back conscience protections for healthcare providers, a bill in the Illinois Senate could compromise the state’s federal funding.
SB 1564, as amended by Senate Amendment No. 3, is a so-called “compromise” between the Illinois American Civil Liberties Union (ACLU) and the state Catholic Conference that would impose new government mandates on healthcare providers to promote its abortion agenda. The bill is not about mere transparency about conscience objections, as is being reported in some media outlets. It co-opts healthcare providers to promote abortions, requiring they inform patients of “legal treatment options” (i.e. abortion) and discuss the “benefits of treatment options” (i.e.benefits of abortion).
When a healthcare provider objects to performing an abortion, she is required to refer, transfer, or provide “in writing information to the patient about other health care providers who they reasonably believe may offer the health care service.”
These new government mandates would have a massive reach. Given the broad definition of health care provider, not only would doctors, hospitals, and pharmacists now be forced to refer, even medicalized pro-life pregnancy centers who offer ultrasounds would be forced to violate their core mission. These centers, which exist to provide alternatives to abortion, would be required to provide information to women coming into their facilities about the “benefits” of abortion and where they can obtain one.
The bill is not only a bad idea for Illinois; it’s an illegal one.
If this bill becomes law, Illinois could lose federal funding for violating longstanding federal conscience law. Under 42 U.S.C. § 238n (the “Coats Snowe” amendment) federal funding is contingent on states protecting the conscience rights of healthcare providers—including the right not to refer for abortion or make arrangements for abortion referrals.
42 U.S.C. § 238n prohibits requiring health care entities or physicians to refer or arrange for abortions. It declares:
(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, 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)[.]
(c) For purposes of this section:
(1) The term “financial assistance”, with respect to a government program, includes governmental payments provided as reimbursement for carrying out health-related activities.
(2) The term “health care entity” includes an individual physician….
Contrary to the clear directives against discrimination in this federal law, SB 1564 requires in some cases that if a health care facility or physician objects to providing abortion, they must arrange for abortion by another provider in the facility, arrange for abortion by a transfer, refer the patient, or arrange for a referral by providing information. All of these requirements violate 42 U.S.C. § 238n by discriminating against health care entities because they will not arrange for, refer for, or make arrangements for a referral for abortions.
SB 1564’s violations of 42 U.S.C. § 238n would subject Illinois to enforcement in court or through administrative proceedings through the U.S. Department of Health and Human Services Office of Civil Rights, which has a complaint process to enforce 42 U.S.C. § 238n. Enforcement would subject Illinois to loss of all of the state’s “federal financial assistance,” including (but not limited to) the “reimbursements” Illinois receives through federal Medicaid, Medicare, and other federal health programs.
Seems like a tall price to pay just to ensure women hear about abortion from the first doctor they encounter after pregnancy begins.
Illinois resident Dan McConchie is Vice President of Government Affairs with Americans United for Life.