How SB 1580 Defines ‘Right of Medical Conscience’ and Free Speech in Health Care
By Jeff Scott, Esq., FMA General Counsel | July 20, 2023
Should a physician be subject to discipline or job termination for refusing to provide a health care service that the physician has a sincerely held religious, moral, or ethical objection to?
During the 2023 session, the Florida Legislature answered this question by passing SB 1580. In the first section of this bill, the Legislature made its position clear on this issue by stating that
It is the intent of the Legislature to provide the right of medical conscience for health care providers and payors to ensure they can care for patients in a manner consistent with their moral, ethical, and religious convictions. Further, it is the intent of the Legislature that licensed health care providers and payors be free from threat of discrimination for providing conscience-based health care.
This Legislature coupled this “right of medical conscience” with a provision protecting the “use of free speech by a health care practitioner” to create a comprehensive legislative package that was a priority of Gov. Ron DeSantis. This analysis of SB 1580 will attempt to explain how these two new provisions affect the practice of medicine.
Right of Medical Conscience
SB 1580 creates a new section of the Florida Statutes1 that gives health care providers (and health care payors) the right to “opt out of participation in or payment for any health care service on the basis of a conscience-based objection.”
It is important to note that this right of conscience only applies to a “health care service.” It does not give a health care provider the right to refuse to perform job requirements that do not involve the provision of a health care service, or the right to refuse to provide a health care service to a particular class of individuals.
“Health care service” is defined to mean:
medical research, medical procedures, or medical services, including, but not limited to, testing; diagnosis; referral; dispensing or administering any drug, medication, or device; psychological therapy or counseling; research; therapy; record-making procedures; set up or performance of a surgery or procedure; or any other care or services performed or provided by any health care provider.
If a health care provider has a conscience-based objection to performing abortions, the provider may not be discriminated against or suffer adverse action for refusing to perform abortions. However, a provider may not choose to perform abortions for some patients, but not for other patients based on the patient’s race, color, religion, sex, or national origin.
The right of conscience is solely attached to a specific health care service. A provider can refuse to prescribe contraceptives to his/her patients but cannot refuse to prescribe contraceptives to only Medicaid recipients. A provider who elects to provide a particular medical procedure to his/her patients may not refuse to provide that procedure to a subset of patients who engage in a certain type of behavior, even if the provider has a conscience-based objection to that behavior.
While the bill sponsors made it clear as to what the right of conscience applies to, they left the issue of whether a conscientious objection exists less certain. SB 1580 defines a “conscience-based objection” as an objection based on a sincerely held religious, moral, or ethical belief.2 As noted in the footnote, whether an entity such as an insurance company has a conscience is determined by existing written evidence. If the articles of incorporation for an insurer state that the company exists to provide health insurance for individuals whose religion forbids the use of birth control, then that insurer will be safe from adverse action for selling insurance policies that do not provide coverage for birth control (unless of course there is a contrary federal requirement). If the company cannot produce a governing document, published guideline, or set of policies or regulations, it will not be entitled to assert a right of conscience.
Individual health care providers3, on the other hand, do not have to produce written evidence attesting to a sincerely held religious, moral, or ethical belief. Apparently, it will be up to the Florida Attorney General, as the entity given enforcement authority for this statute, to determine whether a health care provider alleging a violation has a valid conscience-based objection. Presumably, the Attorney General will assess a provider’s self-professed belief on a case-by-case basis in a manner congruent with the inquiry used for similar laws, such as Title VII of the Civil Rights Act of 1964 (requiring employers to provide an accommodation for employee’s sincerely held religious beliefs).
Health care providers and payors who wish to opt out of participation in or payment for a health care service due to a conscience-based objection must do the following:
- At the time of the objection or as soon as practicable, provide written notice of the objection to the provider’s supervisor or employer, as applicable.
- Document the objection to the particular health care service in the patient’s medical file.
- Notify patients seeking an appointment for a health care service that the provider has a conscience-based objection to of that objection before scheduling the appointment.
- Providers who are students must provide written notice of their conscience-based objection to the educational institution at the time the objection is made or as soon as practicable.
Providers who comply with these requirements may not be discriminated against4 or suffer adverse action5 for exercising their right of medical conscience.
The right of medical conscience section also includes speech and whistle-blower protections, which prohibit discriminating or taking adverse action against health care providers or payors who report violations of the new right of medical conscience statute. This protection is extended to providers who testify, assist or participate in a proceeding brought by the Attorney General to determine if a violation occurred.
Interestingly, this part of the new law also includes a prohibition on discriminating against a health care provider or payor for reasons not related to the right of medical conscience. Protection from discrimination is extended to the disclosure of information the provider or payor reasonably believes constitutes:
- A violation of any law, rule, or regulation.
- A violation of any ethical guidelines for the provision of any medical procedure or service; or
- A practice or method of treatment that may put patient health at risk or present substantial and specific danger to public health and safety.
This protection appears to be very broad and could potentially provide protection in situations as varied as physicians who complain about health insurance prior authorization procedures or physicians who notify a hospital of violations of medical staff bylaws.
Under the original House companion to SB 1580, health care providers and payors were given a civil cause of action for any violation of the right of conscience section. SB 1580, however, rejected this approach in favor of allowing the Attorney General to investigate complaints and bring a civil action for damages, injunctive or other appropriate relief, and attorney fees.
Health care providers and payors who decline to participate in or pay for a health care service because of a conscience-based objection may not be held civilly liable on that basis alone.
Finally, acknowledging the existence of federal EMTALA requirements, the Legislature specifically stated that the medical conscience section does not override any state or federal requirement to provide emergency medical treatment.
Use of Free Speech by a Health Care Practitioner
A bill to ensure the use of free speech by a health care practitioner was filed as a stand-alone bill during the 2022 session (HB 687/SB 1184). Despite support from the Governor, the bills never made it to the House or Senate floor. The free speech concept, in a different form, was combined with the right of conscience issue in SB 1580, passed out of both chambers, and was approved by the Governor less than a week after the end of session.
This scaled down version prohibits a licensing board (or the Department of Health if there is no board) from taking disciplinary action against a health care practitioner6 solely because the practitioner has spoken or written publicly about a health care service or public policy. This includes postings on social media. This protection DOES NOT APPLY to speech, written communications, or social media postings that the provider uses to provide medical advice or treatment to a specific patient. The protection from board discipline also does not apply to speech or written communication that separately violates a different law or rule.
Thus, a health care practitioner can basically say anything they like about health care or public policy, regardless of whether the assertion reflects the actual standard of care or is based on sound scientific principles, as long as it is not made to a specific patient as part of the medical care of that patient.
Unlike the 2022 version, there are no provisions that would impose sanctions on a board that violated this provision.
Part of the impetus for this new right of practitioner free speech is the alleged actions of the American Board of Medical Specialties (ABMS) in dealing with physicians who advocated for alternative treatments for COVID-19 or questioned the safety of COVID vaccines. To correct this perceived overreach, the free speech section of SB 1580 includes a provision that discourages an approved board-certification recognizing agency from revoking the certification of a health care practitioner for speaking or writing about a health care service or public policy. As with the licensing boards, this protection applies to postings on social media but does not apply to speech that constitutes medical advice or treatment to a specific patient.
A specialty board that revokes the certification of a provider solely because the provider exercised their free speech rights under this section may have their approval revoked by the issuing board. It is interesting to note that the specialty boards of the ABMS are recognized by statute and not the Board of Medicine7. As the BOM only has the authority to revoke the approval from a recognizing agency that it has approved, it appears that the BOM does not have the authority to hold an ABMS specialty board accountable for actions taken in violation of this section.
1 Section 381.00321, Florida Statutes (2023).
2 Health care payors and other entities (such as insurance companies and hospitals) can also have conscience-based objections as determined by reference to the entities governing documents; published ethical, moral, or religious guidelines or directives; mission statements; constitutions; articles of incorporation; bylaws; policies; or regulations.
3 Health care provider is defined to mean an entity licensed under Florida’s Mental Health Act; nursing homes; licensed medical transport services; acupuncturists; MDs; DOs; chiropractors; podiatrists; naturopaths; optometrists; nurses; pharmacists; dentists; licensed midwifes; speech-language pathologists; audiologists; nursing home administrators; occupational therapists; radiological personnel; respiratory therapists; dieticians; athletic trainers; orthotists; pedorthists; prosthetists;, electrologists; massage therapists; clinical laboratory personnel, medical physicists; genetic counselors; opticians; hearing aid specialists; physical therapists; psychologists; clinical social workers; licensed professional counselors; marriage and family therapists; mental health counselors; psychotherapists; any activity, service, agency or facility regulated by the Agency for Health Care Administration (see s. 408.802 for the full list); continuing care facilities; pharmacies; and any student enrolled in an educational institution who is seeking to become a health care provider.
4 “Discriminated against” is not defined.
5 “Adverse action” is defined as “the discharge, transfer, demotion, discipline, suspension, exclusion, revocation of privileges, withholding of bonuses, or reduction in salary or benefits; any action that may negatively impact the advancement or graduation of a student, including, but not limited to, the withholding of scholarship funds; or any other disciplinary or retaliatory action taken against a health care provider.”
6 “Health care practitioner” is not defined, but since the statute created is in Chapter 456, the definition of health care provider in s. 456.001 would presumably be applicable.
7 Section 458.3312, Florida Statutes (2023).