AB168: Bill Text

LRB-1565/2

MDK:hmh:jf

2001 - 2002 LEGISLATURE

2001 Assembly BILL 168

March 1, 2001 - Introduced by Representatives Walker, Staskunas, Albers, Colon, Duff, J. Fitzgerald, Freese, Gunderson, Gundrum, Hoven, Huebsch, Jeskewitz, Johnsrud, Kedzie, Krawczyk, Ladwig, F. Lasee, M. Lehman, Leibham, Lippert, Loeffelholz, McCormick, D. Meyer, Montgomery, Nass, Ott, Owens, Petrowski, Pettis, Rhoades, Ryba, Starzyk, Stone, Suder, Sykora, Underheim, Urban, Vrakas, Wieckert and Ziegelbauer, cosponsored by Senators Breske, Roessler, Baumgart, Cowles, Farrow, S. Fitzgerald, Harsdorf, Lazich, Schultz and Welch. Referred to Committee on Labor and Workforce Development.

AB168,1,10 An Act to renumber and amend 111.337 (1), 253.09 (1), 441.06 (6) and 448.03 (5) (a); to amend 253.09 (title), 253.09 (2), 253.09 (3), 253.09 (4) (a), 253.09 (4) (b) 1., 253.09 (4) (b) 2., 441.06 (title) and 448.03 (5) (title); and to create 111.337 (1g), 111.337 (1r) (b), 253.09 (1g), 253.09 (1r) (a) 1. to 7., 253.09 (5), 441.06 (6) (a), 441.06 (6) (b) 1. to 7., 441.06 (7), 441.06 (8), 448.03 (5) (ag), 448.03 (5) (am), 448.03 (5) (ao), 448.03 (5) (ar) 1. to 7. and 450.135 of the statutes; relating to: employment discrimination based on creed and exemption from liability and discipline for physicians, nurses, pharmacists, other health care providers, and hospital employees who refuse to participate in sterilization, abortion, assisted suicide, and other procedures on moral or religious grounds.

Analysis by the Legislative Reference Bureau

Under current law, with certain exceptions, an employer may not engage in employment discrimination based on creed. "Creed" is defined as a system of religious beliefs, including moral or ethical beliefs about right and wrong, that a person sincerely holds with the strength of traditional religious views. Employment discrimination based on creed is defined to include refusing to reasonably accommodate an employee's or prospective employee's religious observances or practices unless the employer can demonstrate that the accommodation would pose an undue hardship.

This bill expands the definition of employment discrimination based on creed to include discriminating against a health care provider on the basis of his or her refusal, based on creed, to participate in any of the following activities: 1) sterilization procedures; 2) certain procedures that prevent the implantation of a fertilized human ovum; 3) abortions; 4) experiments or medical procedures that involve the destruction of a human embryo or that involve a human embryo or unborn child but do not relate to the beneficial treatment of the human embryo or unborn child; 5) procedures using fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage; 6) withholding or withdrawing nutrition or hydration under certain circumstances; or 7) acts causing or assisting in the death of an individual, including assisted suicide, euthanasia, or mercy killing. There is no exception for an employer to show that the refusal poses an undue hardship.

Under current law, hospitals, certain health care professionals and hospital employees may not, under certain circumstances, be required to participate in procedures involving sterilization or the removal of a human embryo or fetus. Specifically, a hospital may not be required to admit a patient or allow the use of its facilities for such a procedure. In addition, physicians and other hospital employees who object, in writing, to participating in such a procedure on moral or religious grounds may not be disciplined for refusing to participate in the procedure. Also, a hospital, school, or employer may not take any disciplinary action regarding employment, staff, or student status against a person who refuses to participate in such a procedure if the refusal is based on moral or religious precepts. Finally, under current law, a hospital and the following persons are exempt from liability for damages that result from a refusal to perform such a procedure if the refusal is based on religious or moral precepts: persons employed by or associated with the staff of a hospital, physicians, and other health care professionals licensed or certified by the medical examining board in the department of regulation and licensing (DORL) and registered nurses licensed by the board of nursing in DORL.

This bill expands all of the provisions described above regarding hospitals, health care professionals, and hospital employees to include a refusal to participate, based on moral or religious grounds, in any of the seven activities described above with respect to employment discrimination based on creed. In addition, the bill allows a person who is adversely affected by conduct that violates these provisions to bring a civil action for injunctive relief, damages, and attorneys fees. Also, the bill provides that pharmacists licensed by the pharmacy examining board in DORL are exempt from liability for damages that result from a refusal to participate in any of the seven activities if the refusal is based on religious or moral precepts. In addition, the bill changes the exemptions from liability under current law for physicians and other health care professionals licensed or certified by the medical examining board and registered nurses licensed by the board of nursing so that they are consistent with the exemption under the bill for pharmacists.

Also, the bill specifies that the medical examining board, board of nursing, pharmacy examining board, or DORL may not take any disciplinary action against any of the following who, in writing, refuse, or state an intention to refuse, to participate in any of the seven activities if the refusal is based on moral or religious grounds: a physician or other health care professional licensed or certified by the medical examining board, registered nurse licensed by the board of nursing, or pharmacist licensed by the pharmacy examining board. In addition, the bill allows a physician, registered nurse, or pharmacist who is adversely affected by conduct that violates this prohibition to bring a civil action for injunctive relief, damages, and attorneys fees. Finally, under the bill, the medical examining board may not take disciplinary action against a physician who makes such a refusal even if the physician refuses to transfer a patient who has executed a declaration authorizing the withholding or withdrawal of life-sustaining procedures or feeding tubes, or who has executed a power of attorney for health care instrument consenting to the withholding or withdrawal of feeding tubes, to another physician who will comply with the declaration or instrument. However, under the bill, the medical examining board may take disciplinary action against a physician who makes such a refusal if the physician refuses to transfer an incapacitated, terminally ill patient who has executed such a declaration.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB168, s. 1 Section 1. 111.337 (1) of the statutes is renumbered 111.337 (1r) (intro.) and amended to read:

AB168,3,4 111.337 (1r) (intro.) Employment discrimination because of creed includes, but is not limited to, refusing any of the following:

AB168,3,8 (a) Refusing to reasonably accommodate an employee's or prospective employee's religious observance or practice unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer's program, enterprise, or business.

AB168, s. 2 Section 2. 111.337 (1g) of the statutes is created to read:

AB168,3,10 111.337 (1g) In this section:

AB168,3,11 (a) "Health care provider" means any of the following:

AB168,4,3 1. An individual licensed, registered, permitted, or certified by the department of health and family services or the department of regulation and licensing to provide health care services in this state.

AB168,4,5 2. An individual who provides health care services as directed, supervised, or inspected by an individual specified in subd. 1.

AB168,4,8 (b) "Human embryo" includes any organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells.

AB168,4,11 (c) "Participate in" means to perform, assist in, recommend, counsel in favor of, make referrals for, prescribe, dispense or administer drugs for, or otherwise promote, encourage, or aid.

AB168, s. 3 Section 3. 111.337 (1r) (b) of the statutes is created to read:

AB168,4,16 111.337 (1r) (b) Discriminating against any health care provider by engaging in any of the actions prohibited under s. 111.322 on the basis of the health care provider's refusal, or statement of an intention to refuse, whether or not in writing, based on his or her creed, to participate in any of the following:

AB168,4,17 1. A sterilization procedure.

AB168,4,19 2. A procedure involving a drug or device that may prevent the implantation of a fertilized human ovum.

AB168,4,20 3. An abortion, as defined in s. 253.10 (2) (a).

AB168,4,21 4. An experiment or medical procedure involving any of the following:

AB168,4,22 a. The destruction of a human embryo.

AB168,4,25 b. A human embryo or unborn child, at any stage of development, in which the experiment or procedure is not related to the beneficial treatment of the human embryo or unborn child.

AB168,5,3 5. A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

AB168,5,5 6. The withholding or withdrawal of nutrition or hydration, unless the administration of nutrition or hydration is medically contraindicated.

AB168,5,7 7. An act that causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

AB168, s. 4 Section 4. 253.09 (title) of the statutes is amended to read:

AB168,5,10 253.09 (title) Abortion refused Refusal to participate in certain practices; no liability; no discrimination.

AB168, s. 5 Section 5. 253.09 (1) of the statutes is renumbered 253.09 (1r) (a) (intro.) and amended to read:

AB168,5,15 253.09 (1r) (a) (intro.) No hospital shall be is required to admit any patient or to allow the use of the hospital facilities for the purpose of performing a sterilization procedure or removing a human embryo or fetus. any of the following:

AB168,5,22 (b) A physician or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which such a procedure the performance of an activity specified in par. (a) 1. to 7. has been authorized, who shall state in writing his or her objection to the performance of or providing assistance to such a procedure, in writing, refuses, or states an intention to refuse, to participate in the activity on moral or religious grounds shall not be required to participate in such medical procedure, and the activity.

AB168,6,4 (c) A physician or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital, is immune from liability for any damage caused by, and may not be subjected to any disciplinary or recriminatory action based on, the refusal of any such the person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person in an activity specified in par. (a) 1. to 7. on moral or religious grounds.

AB168, s. 6 Section 6. 253.09 (1g) of the statutes is created to read:

AB168,6,6 253.09 (1g) In this section:

AB168,6,9 (a) "Human embryo" includes any organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells.

AB168,6,12 (b) "Participate in" means to perform, assist in, recommend, counsel in favor of, make referrals for, prescribe, dispense or administer drugs for, or otherwise promote, encourage, or aid.

AB168, s. 7 Section 7. 253.09 (1r) (a) 1. to 7. of the statutes are created to read:

AB168,6,14 253.09 (1r) (a) 1. A sterilization procedure.

AB168,6,16 2. A procedure involving a drug or device that may prevent the implantation of a fertilized human ovum.

AB168,6,17 3. An abortion, as defined in s. 253.10 (2) (a).