On LB 564, the Health Care Freedom of Conscience Act
March 1, 2013
Mr. Chairman and Members of the Committee:
I am Anna Franzonello, staff counsel with Americans United for Life Action (AULA), the legislative arm of Americans United for Life, a national public interest law firm with a practice in abortion and bioethics law.
I have thoroughly reviewed LB 564, which provides protection—and an adequate enforcement mechanism—for healthcare providers’ freedom of conscience. I am testifying in this proceeding as an expert in constitutional law and as an expert on laws respecting the freedom of conscience. I appreciate this opportunity to testify as to the constitutionality of LB 564 and the necessity of protecting the freedom of conscience of healthcare providers.
In the wake of the Supreme Court’s 1973 decision in Roe v. Wade to nullify state laws proscribing abortion, both federal and state laws were enacted to protect individual and institutional consciences. Since 1977, Nebraska law has stated, without exception, that
No hospital, governing board, or any other person, firm, association, or group shall terminate the employment or alter the position of, prevent or impair the practice or occupation of, or impose any other sanction or otherwise discriminate against any person who refuses to participate in an abortion.
Nebraska’s law has also respected the freedom of conscience for institutions, stating that “No hospital, clinic, institution, or other facility in this state shall be required to admit any patient for the purpose of performing an abortion nor required to allow the performance of an abortion therein.”
Over the last nearly four decades the list of ethical dilemmas in medicine has continued to grow: embryo-destructive stem-cell research, assisted reproductive technologies, abortion-inducing drugs, embryocidal drugs and devices, end-of-life directives, assisted suicide, euthanasia, and others.
While the list of ethical dilemmas increases, so do attacks against the freedom of conscience of healthcare providers.
Comprehensively protecting the freedom of conscience, with an adequate means of enforcement, is necessary to safeguard the principles which the constitutions of the United States and the state of Nebraska enshrine. LB 564 ensures that the medical profession remains guided by conscientious care, not coerced by ideology. Moreover, protecting the freedom is critical to slowing, not exacerbating, shortages of healthcare professionals and ensuring access to health care in Nebraska.
LB 564 is both constitutional and necessary.
- Protecting Freedom Of Conscience Is Of Paramount Importance According To The Nebraska Constitution.
The Constitution of Nebraska is clear that the freedom of conscience is paramount. Defending religious freedom, Article I Section 4 states broadly that “…nor shall any interference with the rights of conscience be permitted.”
LB 564 safeguards this centuries old principle of the Nebraska Constitution. Experience shows that lacking statutory protection with adequate mechanisms of enforcement, the rights of conscience lay vulnerable to attack without promise of redress.
- 2. Freedom Of Conscience Is A Core American Principle Enshrined In The U.S. Constitution.
The Founders of the United States also believed protecting the freedom of conscience was of utmost importance. Thomas Jefferson wrote, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
Freedom of religion is a core American principle, but it is important the concept of conscience not be narrowly defined as a religious. Non-religiously affiliated persons and institutions have consciences that can likewise be violated by mandates and coercive participation in healthcare services.
An early draft of the First Amendment written by James Madison included the following: “The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed.” Though not included in the final version, it is fair to say that it was assumed by the Founders to be included therein.
Accordingly, LB 564 does not narrow the principle of conscience to religion. Freedom of conscience is a pluralistic right, one embraced by religious and non-religious persons alike. LB 564 is not based on respecting one faith but on respecting the integrity of all individuals.
- Federal Law Currently Provides Limited Statutory Protection For Healthcare Freedom Of Conscience.
Congress first addressed the issue of conscience protections just weeks after the U.S. Supreme Court handed down Roe v. Wade. In 1973, Congress passed the first of the Church Amendments (named for its sponsor, Senator Frank Church). The Amendment provides that the receipt of funding through three federal programs cannot be used as a basis to compel a hospital or individual to participate in an abortion or sterilization procedure to which the hospital or individual has a moral or religious objection.
Taken together, the original and subsequent Church Amendments protect healthcare providers from discrimination by recipients of U.S. Department of Health and Human Services (HHS) funds on the basis of their objection, because of religious belief or moral conviction, to performing or participating in any lawful health service or research activity.
In 1996, Section 245 of the Public Health Service Act was enacted to prohibit the federal government and state or local governments that receive federal financial assistance from discriminating against individual and institutional healthcare providers, including participants in medical training programs, who refused to, among other things, receive training in abortions; require or provide such training; perform abortions; or provide referrals or make arrangements for such training or abortions. Known as the Coats Amendment (named for its sponsor, Senator Daniel Coats), the measure responded to a proposal in 1995 by the Accreditation Council for Graduate Medical Education to mandate abortion training in all obstetrics and gynecology residency programs.
The most recent federal conscience protection, the Hyde-Weldon Amendment, was first enacted in 2005 and provides that no federal, state, or local government agency or program that receives funds in the Labor, Health and Human Services (LHHS) appropriations bill may discriminate against a healthcare provider because the provider refuses to provide, pay for, provide coverage of, or refer for abortion. The Amendment is subject to annual renewal and has survived multiple legal challenges brought by pro-abortion groups.
Since these federal laws are attached to specific federal spending measures, LB 564 is necessary to provide comprehensive protection for the freedom of conscience for healthcare professionals in Nebraska.
- Protecting Conscience Avoids Aggravating Existing Healthcare Crisis
Protecting the freedom of conscience of healthcare providers and institutions is necessary to avoid added stress on an already overtaxed healthcare system. Experts project that current shortages of physicians, nurses, and other healthcare professionals will worsen, failing to meet future requirements.
Legal action and other pressure to compel healthcare providers to participate in procedures to which they conscientiously object threaten to make the already dangerous situation disastrous. By forcing healthcare professionals to choose between conscience and career, we will lose doctors, nurses, and other healthcare providers who are already in short supply, especially in rural parts of the country, and will bar competent young men and women from entering these vital professions.
Many women have already experienced first-hand the current provider shortage, having a hard time finding obstetricians to deliver their babies. In 2006, 14 percent of ACOG members reported they had stopped delivering babies. Further, the American Association of Medical Colleges (AAMC) projects an anticipated physician shortfall of 91,500 or more by 2020.
As troubling as these predictions are, the nursing shortage is even worse. Some studies predict the shortage of registered nurses (RNs) in the U.S. will reach 260,000 by 2020. Health Resources and Services Administration (HRSA) officials have projected the nation’s nursing shortage could grow to more than one million nurses by 2020, and analysts show that all 50 states will experience a shortage of nurses to varying degrees by the year 2015—just a few years from now.
According to a July 2007 report released by the American Hospital Association, U.S. hospitals need approximately 116,000 RNs to fill current vacant positions nationwide. Moreover, over half of the surveyed nurses reported that they intended to retire between 2011 and 2020. The Council on Physician and Nurse Supply has determined that 30,000 additional nurses must graduate annually to meet the nation’s emerging healthcare needs, an expansion of 30 percent of the current number of annual nurse graduates.
The University of Nebraska’s website states that “The nursing shortage affects Nebraska border to border. No city or region is spared…Lack of care impedes not just physical health but also economic health – the ability of communities to draw and hold residents and the businesses that employ them.” And the projected shortage is only expected to increase. By the year 2020, Nebraska will have a shortage of about 3,800 nurses. An aging baby boomer generation, in the words of the University of Nebraska, will be “pushing the already serious shortage of nurses to crisis stage in the years ahead.”
Insufficient staffing raises stress levels, impacts job satisfaction, and is driving many to leave nursing. Many recent studies also point to the connection between adequate staffing and safe patient care. Increases in registered nurse staffing was associated with reductions in hospital-related mortality and “failure to rescue” incidents, lower rates of infection, as well as reduced length of stays; conversely, in settings with inadequate staffing, patient safety was compromised. Most hospital RNs (up to 93 percent) report major problems with having enough time to maintain patient safety, detect complications early, and collaborate with other healthcare team members.
The nurse-to-patient ratio has a dramatic impact on mortality rates, and more nurses can mean thousands of lives saved each year. There is up to a 31 percent increased risk of death for patients who have common surgeries in hospitals with high patient-to-nurse ratios. Every additional patient in an average hospital nurse’s workload increased the risk of death in surgical patients by 7 percent. Considering the costs of replacing nurses who leave the workforce suffering burnout and the subsequent care for patients with poor outcomes due to the shortages, it seems having too few nurses also has a negative economic impact.
A recent University of Nebraska Medical Center study reports that the number of primary care physicians in Nebraska is 30 percent lower than previously reported by the American Medical Association. 11 rural counties in the state do not have any primary care physicians. Alarmingly, the number of primary care physicians older than 65 has grown by 78 percent. The shortage in Nebraska will increase as these physicians retire. The report also found that the state, which currently has 1,410 primary care physicians, will need 1,685 primary care physicians by 2014 to meet the demands when new portions of the federal Affordable Care Act go into effect.
There is an important public health interest in ensuring the protection of conscience rights; forcing healthcare professionals to choose between their consciences and their careers will only heighten the current healthcare provider shortage. In a survey conducted in 2008, 91 percent of faith-based physicians agreed with the statement, “I would rather stop practicing medicine altogether than be forced to violate my conscience.”
To slow—and not exacerbate—these shortages, there is a need for comprehensive conscience protections, such as those contained in LB 564.
- While Protecting Conscience Rights Is Common-Sense, Coercion And Discrimination Against Healthcare Professionals Is All Too Commonplace.
According to a national poll conducted in 2011, 77% of American adults surveyed said it is either “very” or “somewhat” important to them that “that healthcare professionals in the U.S. are not forced to participate in procedures or practices to which they have moral objections.” However, while protecting conscience rights is common-sense, coercion and discrimination against healthcare professionals is all too commonplace.
In recent years, pharmacists have faced increasingly strident and public attacks on their rights of conscience. Not surprisingly, this attack directly relates to the ongoing battle over abortion. Following Roe v. Wade, the issue of healthcare rights of conscience focused on the freedom of physicians, nurses, and other healthcare professionals to abstain from participating in surgical abortions. Although this freedom is generally accepted by society, and statutorily protected in Nebraska, in the past decade pro-abortion groups have expanded their attacks on conscience, especially with regard to pharmacists’ role in dispensing so-called “emergency contraception,” which includes Plan B (i.e. the “morning-after pill”) and ella, (a progesterone-blocking drug similar to the FDA-approved “abortion pill” RU-486) – both drugs that have life-ending mechanisms of action, and oral contraceptives. Where assisted suicide has been legalized there is an added concern that pharmacists will be coerced to participate in intentionally life-ending prescriptions. The growing trend is to demand access to these drugs at the expense of the freedom of conscience of health care professionals.
Planned Parenthood, NARAL Pro-Choice America (NARAL), and their allies are actively conducting a campaign to enact legislation that would force pharmacists to fill prescriptions for birth control and abortion-inducing drugs regardless of an individual pharmacist’s conscientious objection.
This mindset belittles the role of a pharmacist, treating these healthcare professionals as merely vending machines. In the words of the American Pharmacists Association, “We don’t have a profession of robots. We have a profession of humans. We have to acknowledge that pharmacists have individual beliefs.”
On April 5, 2011, after nearly five years of litigation an Illinois trial court found that a rule promulgated in 2005 by then-Governor Rod Blagojevich and requiring pharmacists to dispense so-called “emergency contraception,” violated the “Illinois Health Care Rights of Conscience Act” a conscience law similar to LB 564 in its comprehensive protections.
On September 22, 2012, a state appellate court ordered that the Rule not be enforced against plaintiffs Luke Vander Bleek, Glenn Kosirog, and several Illinois pharmacies owned and operated by them. Finally, in December 2012, the Illinois Attorney General announced that it will not appeal the case to the Illinois Supreme Court, ensuring a victory not only for the freedom of conscience for health care providers such as Luke Vander Bleek and Glenn Kosirog, but for the access to health care for the citizens of Illinois. Thanks to the comprehensive conscience protections provided in Illinois law, the pharmacies owned by Vander Bleek and Kosirog are able to continue to serve the public, rather than be forced to close their doors.
In February 2012, a federal court issued a similar ruling striking down coercive rules promulgated by the Washington Board of Pharmacy. Following a 12-day trial, the court in Stormans v. Selecky issued a resounding decision supporting the conscience rights of pharmacists and pharmacies. The court also acknowledged that “the right to refrain from taking human life” is a right “deeply rooted in our nation’s history, legal traditions, and practices.’”
Moreover, as the court in the Stormans case noted, “None of [pharmacies’] customers has ever been denied timely access to emergency contraception.” In fact, the Washington Board of Pharmacy commissioned a survey which “confirm[ed] that Plan B is widely available, and religious objections do not pose a barrier to access.” This was the case even in rural areas—those areas that Planned Parenthood and abortion advocates claim are underserved. The court found, “no Board witness, or any other witness, was able to identify any particular community in Washington—rural or otherwise—that lacked timely access to emergency contraceptives or any other time-sensitive medication.”
The court in Stormans acknowledged that many of the “refusal stories” (offered by the State in defense of the coercive rules) were not the result of natural encounters with access problems, but were “manufactured” by Planned Parenthood and other abortion advocates. Thus, the argument advanced by Planned Parenthood and its allies about the need to deny conscience rights in the name of “access” is a red herring.
Abortion advocacy groups recognize that if they can establish legal precedent to coerce someone to violate their conscience regarding “contraceptives,” they can then easily extend that legal precedent to coerce pharmacists to dispense RU-486, to coerce medical students to participate in abortion training, and to coerce doctors to participate in surgical abortions.
Efforts to expand legal coercion are well underway and they include mandatory referral of patients. For example, on August 30, 2005, Michael Mennuti, the President of American College of Obstetrics and Gynecology (ACOG), wrote to the U.S. Congress, stating the official position of ACOG: “Doctors who morally object to abortion should be required to refer patients to other physicians who will provide the appropriate care.” Recent actions by ACOG and the American Board of Obstetrics and Gynecology (ABOG) to make board certification or recertification dependent on compliance with ACOG’s position on referrals for abortion furthers this coercive effort.
Such efforts by ACOG and ABOG are only the first steps. After forcing complicity, the next step will be the coercion of active participation in abortion and other objectionable services and procedures by morally-objecting providers. Opponents of conscience usually argue that only individuals can or should have (limited) freedom of conscience. This is short-sighted and purposely misunderstands the notion that the mission of an organization or institution (such as a hospital or a healthcare insurer) is informed by the individuals controlling that organization or institution.
Ira Glasser, serving as Executive Director of the American Civil Liberties Union (ACLU), made it clear that the goal of these advocacy groups is to eviscerate conscience protections. He asserted, “Much of the debate focused on strategy, with participants wondering whether it was better to work toward improving and narrowing conscience clauses altogether. … Although reproductive rights activists should still work to improve conscientious objections, their ultimate goal should be getting rid of them.”
Protecting freedom of conscience does not ban any procedure or prescription and does not mandate any particular belief or morality. Freedom of conscience, statutorily enforced by LB 564, simply provides men and women of Nebraska the guarantees that this state and country were built upon: the right to be free from coercion. Protecting conscience helps ensure providers enter and remain in the healthcare profession, helping to meet the rising demand for quality health care. Failing to do so will compromise basic health care for the state of Nebraska.
 410 U.S. 113 (1973).
 Neb. Rev. Stat. §§ 28-338
 Neb. Rev. Stat. §§ 28-337
 Neb. Const. art. I, sec. 4 (1875).
 Thomas Jefferson to New London Methodists (1809).
 1 Annals of Congress 434 (June 8, 1789). (Emphasis added).
 42 U.S.C. 3001-7
 42 U.S.C. 238n.
 Consolidated Appropriations Act 2008, Pub. L. No. 110-161, §508(d), 121 Stat. 1844, 2209 (2007).
 Voice of America, US Faces Obstetrician Shortage (Aug. 2006), available at http://www.voanews.com/english/news/a-13-2006-08-07-voa51.html (last visited Jan. 22, 2012).
 M. Croasdale, Medical Schools on Target to Reach Enrollment Goals (June 23/30, 2008), available at http://amednews.com (last visited Jan. 22, 2012). According to the Association of American Medical Colleges’ work force projections, nationwide physician shortages are expected to balloon to 62,900 doctors in five years and 91,500 by 2020. C. Krupa, Physician shortage projected to soar to more than 91,000 in a decade (Oct. 11, 2010), available at http://www.ama-assn.org/amednews/2010/10/11/prsb1011.htm (last visited Jan. 22, 2012).
 Peter Buerhaus et al., The Recent Surge in Nurse Employment: Causes and Implications, 28:4 Health Affairs 657 (July/August 2009), Dr. Peter Buerhaus and coauthors found that despite the current reduction of the nursing shortage because of the economic recession, the U.S. nursing shortage is projected to grow to 260,000 RN’s by 2025, which will be twice as large as any US nursing shortage experienced since the mid-1960s.
 See Bureau of Health Professions, Health Res. & Sers. Admin. (HRSA), What is Behind HRSA’s Projected Supply, Demand, and Shortage of Registered Nurses?, (Sept. 2004), available at http://dwd.wisconsin.gov/healthcare/pdf/behind_the_shortage.pdf. Arlene Dohm & Lynn Shniper, Occupational employment projections to 2016, Monthly Lab. Rev. 86 (Nov. 2007) available at www.bls.gov/opub/mlr/2007/11/art5full.pdf (last visited Sept. 21, 2011). According to projections from the U.S. Bureau of Labor Statistics published in the November 2007 more than one million new and replacement nurses will be needed by 2016. Government analysts project that more than 587,000 new nursing positions will be created through 2016 (a 23.5 percent increase), making nursing the nation’s top profession in terms of projected job growth.
 See The 2007 State of America’s Hospitals – Taking the Pulse (July 2007), available at http://www.aha.org/aha/content/2007/PowerPoint/StateofHospitalsChartPack2007.ppt (last visited Jan. 22, 2012).
 Bernard Hodes Group, Aging Nursing Workforce Survey (July 2006), available at http://www.hodes.com/industries/healthcare/resources/research/agingworkforce.asp (last visited Jan. 22, 2012).
 See Press Release, Council on Physician and Nurse Supply, Council Calls on White House to Convene Conference on Physician and Nurse Supply, (Feb. 2008), available at http://www.physiciannursesupply.com/Articles/council-release-feb-08.pdf (last visited Jan. 22, 2012).
 See http://nebraska.edu/legislative-information/nebraskas-nursing-shortage.html
 See Peter Buerhaus et al., Trends in the Experiences of Hospital-Employed Registered Nurses: Impact of the Nursing Shortage, 25(2) Nursing Economics 69 (May 2007). (Reporting on the findings from the 2006 National Survey of Registered Nurses (RNs) as well as surveys of RNs conducted in 2002 and 2004, Dr. Buerhaus and colleagues found a large proportion of RNs perceived the shortage has been a “major problem” for ability of nurses to maintain patient safety (63-71 percent), lowering the quality of patient care (70-80 percent), work life quality (72-83 percent) and nurses time for patients (82-93 percent).) See also Linda Aiken et al., Hospital Nurse Staffing and Patient Mortality, Nurse Burnout, and Job Dissatisfaction, 288(16) J. Am. Med. Ass’n, 1987 (Oct. 2002). (Nurses reported greater job dissatisfaction and emotional exhaustion when they were responsible for more patients than they can safely care for. Researchers concluded that “failure to retain nurses contributes to avoidable patient deaths.”)
 See e.g. Robert Kane et al., Nurse Staffing and Quality of Patient Care, Evidence Reports/Technology Assessments, No. 151, Agency for Healthcare Research & Quality (March 2007), available at http://www.ncbi.nlm.nih.gov/books/NBK38315/. Through meta-analysis, the authors found the shortage of registered nurses, in combination with an increased workload, poses a potential threat to the quality of care.
 See Mary Blegen et al., Nurse Staffing Effects on Patient Outcomes: Safety-Net and Non-Safety-Net Hospitals, 49(4) Med. Care 406 (Apr. 2011). See also Mark Swanton, Hospital Nurse Staffing and Quality of Care, 14 Research in Action, Agency for Healthcare Research & Quality (2004), available at http://www.ahrq.gov/research/nursestaffing/nursestaff.pdf.
 See Buerhaus et al., supra note 18.
 See Aiken et al., supra note 18.
 S. Bhuyn et al., Active Primary Care Physicians in Nebraska: Data Comparison, Supply, and Characteristics, Center for Health Policy (Aug. 2012), http://www.unmc.edu/publichealth/docs/PCPsinNebraska.pdf.
 See Freedome2Care, Two National Polls Reveal Broad Support for Conscience Rights in Health Care (April 2009), available at http://freedom2care.org/learn/page/polls-april-2009 (last visited Jan. 22, 2012).
 See http://www.freedom2care.org/learn/page/polls-may-2011
 For an example of a pharmacists’ conscience objection resulting in the loss of employment, see Jo Mannies, “Pill Dispute Here Costs Pharmacist Her Job,” St. Louis Post-Dispatch, January 27, 2006, A1.
 410 U.S. 113 (1973).
 Although Plan B is commonly referred to as the “morning after pill,” such a description is misleading because the drug may work by preventing implantation of an already formed human embryo, thus killing the embryo.
 The mechanism of action of ulipristal in human ovarian and endometrial tissue is identical to that of its parent compound mifepristone.” Harrison & Mitroka, Defining Reality: The Potential Role of Pharmacists in Assessing the Impact of Progesterone Receptor Modulators and Misoprostol in Reproductive Health, 45 Annals Pharmacotherapy 115 (Jan. 2011).
 “Access” is the frame promoted by pro-abortion groups. “Illinois Rules on Access,” Planned Parenthood of America, available at http://www.plannedparenthood.org/pp2/portal/files/portal/media/pressreleases/pr-050816-pharmacist.xml (last visited Jan. 22, 2012).
 See e.g. NARAL, Guarantee Women’s Access to Birth Control, available at http://www.prochoiceamerica.org/assets/files/Birth-Control-Pharmacy-Access.pdf (last visited Sept 11, 2012). These lines are often repeated verbatim by local NARAL affiliates. See e.g., NARAL Pro-Choice Wisconsin, Birth Control Protection Act, available at http://www.prochoicewisconsin.org/issues/factsheets/200711084.shtml (last visited Sept. 11, 2012).
 R. Stein, Pharmacists’ Rights at Front of New Debate, The Washington Post, Mar. 28, 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A5490-2005Mar27_2.html (last visited Sept. 10, 2012).
 745 ILL. COMP. STAT. 70/1
 Morr-Fitz, Inc. v. Quinn, 2012 IL App (4th) 110398 (Ill. App. Ct. 4th Dist. 2012).
 Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012).
 Findings of fact and conclusions of law at Stormans, Inc. v. Selecky, 2012 U.S. Dist. LEXIS 22375 at ¶ 12 (W.D. Wash. Feb. 22, 2012).
 Id. at ¶ 99.
 See http://www.bpnews.net/printerfriendly.asp?ID=21666 (last visited Jan. 23, 2012).
 The American College of Obstetrics and Gynecology (ACOG), reaffirmed the 2007 Ethics Committee Number 385, titled “The Limits of Conscientious Refusal in Reproductive Medicine,” in November of 2010. Rule number 385 mirrors the abortion industry’s perspective, categorizing a conscience objection as a “refusal,” and describing elective abortion and other controversial reproductive medical procedures and services as “standard.” The effect of the ACOG committee opinion is that otherwise qualified health care providers specializing in obstetrics and gynecology may lose their Board certification solely because of their pro-life values. According to the 2011 Bulletin for Basic Certification in Obstetrics and Gynecology from the American Board of Obstetrics and Gynecology (ABOG), an individual can have his or her board certification revoked if he or she acts in “violation of ABOG or ACOG rules and/or ethical principles.” Without Board certification, the doctor is subject to discrimination by other entities. State and local governments, hospitals, or other institutions that require Board certification may take action against the physician. Thus, refusing to conform to the ACOG recommendations on abortion could result in the loss of a health care provider’s livelihood. In finding that abortion is a circumstance where conscientious objection “can and should be overridden in the interest of other moral obligations that outweigh it,” ACOG’s subjection of conscience to patient autonomy (perhaps ironically) leaves patients paying the ultimate price. Access to essential reproductive health care will be limited, as pro-life doctors will be forced out of the field, and otherwise qualified young men and women will be dissuaded from entering it.
 See “Conscientious Exemptions and Reproductive Rights,” Executive Summary, 10 (emphasis added).