Academic journal article Ave Maria Law Review

Protecting the Other Right to Choose: The Hyde-Weldon Amendment

Academic journal article Ave Maria Law Review

Protecting the Other Right to Choose: The Hyde-Weldon Amendment

Article excerpt

Consider a person who has undergone the necessary training to join the ranks of emergency medical technicians ("EMTs") who are committed to saving lives across the nation. (1) Now consider that this person is asked to respond to a non-emergency call to transport a patient from a hospital to an abortion clinic for an elective abortion. (2) The EMT informs her employer that transporting the patient to an abortion clinic for an elective abortion directly contravenes her moral convictions. In response, the employer immediately fires her.

This Note discusses the conflict surrounding a law designed to protect those who, like the EMT, are discriminated against because of their conscientious objections to abortion. The provision that affords this protection is known as the Hyde-Weldon Conscience Protection Amendment ("Hyde-Weldon Amendment," "Amendment," or "Hyde-Weldon"), (3) named after the two Republican Congressmen who sponsored the Amendment, Representative Henry Hyde of Illinois and Representative Dave Weldon, a Florida physician. (4) The Amendment, which passed in December of 2004 as part of an appropriations act, (5) prohibits the disbursement of Labor, Health, and Human Services-Education ("Labor-HHS-ED") funds to federal agencies, federal programs, and state and local governments that "discrimin[ate] on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." (6) In other words, it is anti-discrimination legislation. Now, a government agency wishing to force a hospital, doctor, or similarly situated health care entity to provide, pay for, or refer for abortions cannot do so if it wishes to receive federal funding. The provision is strictly limited to these circumstances. Representative Weldon noted "that the provision applies only when a 'healthcare entity' refuses to provide abortion services, and a government tries to force it to do so. 'Therefore this provision will not affect access to abortion or the provision of abortion-related information by willing providers."' (7)

Part I of this Note details some of the background to the Hyde-Weldon Amendment, specifically the gap in "conscience protection" provisions of federal law prior to Hyde-Weldon. Part II discusses the anomalous opposition to this anti-discrimination law, including legal challenges to the Amendment. In response to these challenges, Part III of this Note explains the constitutional legitimacy of the Hyde-Weldon Amendment as applied under Congress's spending power and the Tenth Amendment and argues that Hyde-Weldon survives facial challenges because it is not vague or overbroad. The Note concludes that the Amendment represents an important step in protecting the rights of health care workers who refuse to act contrary to the dictates of their consciences.


Other federal laws that afford certain conscience protections for health care entities existed prior to the enactment of the Hyde-Weldon Amendment. (8) Those laws, however, suffered from a perceived ambiguity and subsequent court challenges over the meaning of the words "healthcare entities." (9) It was successfully argued that the term "healthcare entities" applied only to individuals and not to institutions; (10) this distinction, in turn, opened the door for the implementation of coercive measures to be used to require institutional health care providers to participate in abortion. For example, in the case of Valley Hospital Ass'n v. Mat-Su Coalition for Choice, (11) the Alaska Supreme Court forced a "quasi-public" community hospital to provide abortions despite the hospital's policy and the sentiment of the community. (12)

A hospital in St. Petersburg, Florida, felt the brunt of similar pressure. Bayfront Medical Center is a private hospital that leases land from the City of St. Petersburg for ten dollars a year. (13) In 1997, Bayfront joined a number of other hospitals in the area to form BayCare Health System and, by 1999, Bayfront had ceased providing abortions and had made other changes to meet requirements of two Catholic partners. …

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