HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1403 Protections of Medical Conscience
SPONSOR(S): Health & Human Services Committee, Healthcare Regulation Subcommittee, Rudman
TIED BILLS: IDEN./SIM. BILLS: SB 1580
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Healthcare Regulation Subcommittee 12 Y, 5 N, As CS McElroy McElroy
2) Health & Human Services Committee 11 Y, 5 N, As CS McElroy Calamas
SUMMARY ANALYSIS
Most definitions in the U.S. legal context broadly define conscience to include moral, ethical, or religious
principles. Conscience protection laws protect individuals and entities from being required to perform services
that violate their religious beliefs or moral convictions.
CS/CS/HB 1403 establishes a health care provider’s or health care payor’s right to decline to participate in any
health care service, including treatment and research, that violates the provider’s or payor’s sincerely held
religious, moral or ethical beliefs. The bill requires health care providers and students to raise a conscience-
based objection at the time when the incident giving rise to the objection occurs or as soon as practical
thereafter. The bill also requires health care providers to document the objection in the patient’s medical
record.
The bill prohibits individuals and entities from discriminating against a health care provider or payor on the
basis of conscience-based objection. The bill provides civil immunity to health care providers and health care
payors for exercising their right of conscience and provides whistleblower protections. The bill expressly
excludes immunity for conscience-based objections for any medical malpractice claims related to services a
health care actually performed.
The bill authorizes a health care provider or health care payor 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 payor’s conscience.
The First Amendment of the United States Constitution protects the right to freedom of expression from
government interference. Under current law, government regulation based on the content of speech is
presumptively invalid and is 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.
Current law authorizes a regulatory board or DOH, if there is no board, to discipline a health care practitioner’s
license for a number of offenses, including failing to adhere to the applicable standard of care and making
misleading, deceptive, or fraudulent representations in or related to the practice of the licensee’s profession.
DOH and the boards however, do not have the authority to regulate free speech.
The bill prohibits a board within the jurisdiction of DOH, or DOH if there is no board, from taking disciplinary
action against a health care practitioner for exercising their constitutional right of free speech, including, but not
limited to, through the use of a social media platform. The bill authorizes DOH to revoke approval of specialty
boards and recognizing agencies if these entities revoke a practitioner’s certification based upon the
practitioner exercising his or her constitutional right of free speech.
The bill has no fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1403d.HHS
DATE: 4/11/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Medical Conscience
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 Act4 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
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 Specifically, the AMA believes that
physicians should:8
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.
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 b eliefs 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/system/files/code-of-medical-ethics-chapter-1.pdf (last visited on March 31, 2023).
8 Id.
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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. 9 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. 10
Conscience clauses are not without controversy. Several scholars question whether offering legal
protections for health care providers’ exercise of conscience is even justified. 11 Other commentators
argue that conscience laws should not protect providers from criminal prosecution, 12 civil liability,13 or
regulatory sanction.14
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”. 15 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. 16
Federal Health Care Conscience Protections
9
Frader, J., Bosk, C.L., The personal is political, the professional is not: conscientious ob jection to ob taining/providing/acting on genetic
information, Am J Med Genet C Semin Med Genet. 2009;151C(1):62-67.
10 Lynch, H.F., Conflicts of Conscience in Health Care: An Institutional Compromise, Cambridge, MA, MIT Press, 2008: 231.
11 Charo, R.A., The Celestial Fire of Conscience – Refusing to Deliver Medical Care, New England Journal of Medicine 352 (2005), pgs.
2471-2473, 2473.
12 Nelson, L., Provider Conscientious Refusal of Ab ortion, Ob stetrical Emergencies, and Criminal Homicide Law, American Journal of
Bioethics, July;18(7): pgs. 43-50 (2018).
13 Rich, B.A., Your Morality, My Mortality: Conscientious Ob jection and the Standard of Care , Cambridge Quarterly of Healthcare
Ethics, 24: pgs. 214-230, 228 (2015).
14 Id.
15 White, K.A., Crisis of conscience: Reconciling religious health care providers’ b eliefs and patient rights , Stanford Law Review, 51,
1703-1749 (1999).
16 Sawicki, N., The Conscience Defense to Malpractice, 108 Calif. L. Rev. 1255, pg. 1260 (2020).
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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:17
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.18
The following “covered entities” must comply with the federal health care provider conscience laws: 19
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;
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. 20
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: 21
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.22
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.23
17 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. (last visited March 31, 2023).
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
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Office of Civil Rights
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 w