From the complaint…
The Final Rule defines “assist in the performance” to include not only assistance in the
performance of those actual procedures—the ordinary meaning of the phrase—but also participation in
any other activity with “an articulable connection to furthering a procedure.” Id. This means, for
example, that simply admitting patients to a health care facility, filing their charts, transporting them
from one part of the facility to another, or even scheduling the appointment or processing an insurance
claim could conceivably be considered “assist[ing] in the performance” of an abortion or sterilization,
as any of those activities could have an “articulable connection” to the procedure.
52. Indeed, OCR expressly acknowledges that it “believes [such] examples are properly
considered as within the scope of the protections enacted by Congress for those who choose to assist and those who choose not to assist in the performance of an abortion.” Final Rule at 74 (“Scheduling
an abortion or preparing a room and the instruments for an abortion are necessary parts of the process
of providing an abortion, and it is reasonable to consider performing these actions as constituting
53. The Final Rule thus allows any entity involved in a patient’s care—from a hospital
board of directors to the receptionist that schedules procedures—to use their personal beliefs to
determine a patient’s access to care.
54. This goes well beyond what was intended by Congress. The Church Amendments
prohibit federal funding recipients from discriminating against those who refuse to perform or “assist
in the performance” of sterilizations or abortions. And during debate on the legislation, Senator
Church expressly stated that, “the amendment is meant to give protection to the physicians, to the
nurses, to the hospitals themselves, if they are religious affiliated institutions. There is no intention
here to permit a frivolous objection from someone unconnected with the procedure to be the basis for a
refusal to perform what would otherwise be a legal operation.” 119 Cong. Rec. S9597 (Mar. 23, 1973)
(statement of Sen. Church).