Can a Texas medical residency offer abortion training on an opt-in basis even though ACGME accreditation rules require opt-out?

Plain-English summary

The chair of a Texas Senate committee asked the Attorney General how Texas medical schools and residency programs should handle a conflict between a federal nondiscrimination statute and the abortion-training rules of the national accreditor for residency programs.

The federal statute is the Coats-Snowe Amendment, enacted in 1996 and codified at 42 U.S.C. § 238n. It bars the federal government, and any state or local government that receives federal financial assistance, from discriminating against a "health care entity" because the entity refuses to undergo, require, or provide training in performing induced abortions, or refuses to make referrals or arrangements for such training. The statute defines a health care entity to include an individual physician, a postgraduate physician training program, and a participant in a health-professions training program. In plain terms, the AG noted, that covers a doctor, a residency program, and a resident.

The accreditor is the Accreditation Council for Graduate Medical Education (ACGME), which by 2020 was the sole accreditor for graduate medical education. A document the senator supplied with her request showed the ACGME's position that "[a]ccess to experience with induced abortion must be part of residency education," structured so that residents "opt out" rather than "opt in," and that an opt-in program (one without a standing abortion-training curriculum unless a resident requests it) does not comply with ACGME requirements. Because accreditation can affect a program's eligibility for federal funding, the conflict matters financially.

The AG concluded that reliance on the ACGME's opt-out standard conflicts with the Coats-Snowe Amendment. Coats-Snowe tells state and local governments how to respond: in deciding whether to grant a legal status (like a license or certificate) or financial assistance, the government must "deem accredited" any postgraduate physician training program that would be accredited but for the accreditor's reliance on a standard requiring abortion training, regardless of whether the standard offers exceptions. So Texas must recognize as accredited any program that meets the other criteria but does not offer or require abortion training, and must license doctors or students who train at such a program or who do not participate in abortion training. The effect, the AG said, is that the statute disregards the ACGME's opt-out standard and lets Texas programs provide abortion training on an opt-in basis with no accreditation consequence.

The AG then addressed a second point. The text of Coats-Snowe does not itself require programs to offer training only on an opt-in basis, but the AG reasoned that forcing a person to affirmatively opt out can implicate other conscience rights. The Texas Religious Freedom Restoration Act and the federal Religious Freedom Restoration Act both bar the government from substantially burdening a person's free exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. To the extent no compelling interest justifies requiring a person with conflicting religious beliefs to undergo the training, the AG said adherence to an opt-out requirement could violate those statutes, and a court could also find a First Amendment violation if the requirement coerces a person to give up First Amendment rights (the AG drew a comparison to Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., a 2018 union-dues decision). Given those concerns, the AG concluded a graduate medical education program "should implement opt-in induced abortion training."

A note on currency: this is the AG's December 2021 position. AG opinions are persuasive, not binding. Federal and state law on abortion changed substantially after 2021, and accreditation standards can change too. Treat this page as a record of what KP-0395 said, not as current law.

What this means for you

This section describes what the opinion holds for each group. It is the AG's 2021 legal interpretation, not a binding rule, and the legal landscape has shifted since.

Medical schools and residency program directors

The opinion takes the position that Coats-Snowe overrides the ACGME's opt-out abortion-training standard for purposes of Texas licensing and funding decisions: a program that otherwise qualifies cannot be denied accredited status by Texas just because it does not require or provide abortion training. The AG went further and said programs "should" use opt-in rather than opt-out, citing conscience-rights concerns.

Residents and physicians

The opinion reads Coats-Snowe to protect an individual doctor or resident from being denied a license or status by the state for refusing to undergo abortion training. It also frames opt-out requirements as a potential burden on religious exercise under the Texas and federal RFRAs.

State licensing and funding officials

The AG's reading is that in granting a license, certificate, or financial assistance, Texas must "deem accredited" a qualifying program even if an accreditor would withhold accreditation over the lack of abortion training. Whether any specific enforcement action would survive is not resolved here; the opinion notes that several universities reported they had not faced any ACGME inquiry or enforcement over an opt-in approach.

Common questions

Q: What is the Coats-Snowe Amendment?
A: It is a 1996 federal law (42 U.S.C. § 238n) that prohibits the federal government and federally funded state and local governments from discriminating against a doctor, resident, or residency program for refusing to perform, require, provide, or refer for training in induced abortions.

Q: Did the AG say Texas residencies can skip abortion training?
A: The AG concluded that Coats-Snowe requires Texas to treat a program as accredited even if it does not offer or require abortion training, so programs may offer that training on an elective, opt-in basis without an accreditation penalty from the state.

Q: What about the ACGME accreditation rule requiring opt-out?
A: The AG said relying on the ACGME's opt-out standard conflicts with Coats-Snowe, and that the federal statute directs Texas to disregard that standard for licensing and funding purposes.

Q: Where does religious freedom come in?
A: The AG reasoned that forcing someone to affirmatively opt out of abortion training could substantially burden religious exercise, which the Texas and federal Religious Freedom Restoration Acts bar absent a compelling interest pursued by the least restrictive means, and could raise First Amendment concerns.

Q: Is this still the law?
A: This is a 2021 opinion, and AG opinions are persuasive rather than binding. Abortion law in Texas and nationally changed significantly after 2021, and accreditation standards can change. Verify current law before relying on any point here.

Background and statutory framework

The Coats-Snowe Amendment, 42 U.S.C. § 238n, was enacted in 1996. Subsection (a) prohibits discrimination against a health care entity for refusing abortion-related training activities; subsections (c)(2) and (c)(3) define a health care entity to include an individual physician, a postgraduate physician training program, and a training-program participant; and subsection (b)(1) directs governments to "deem accredited" a program that would be accredited but for an accreditor's reliance on an abortion-training requirement. The opinion notes that accreditation can affect federal funding for graduate medical education, citing among others 42 U.S.C. § 1395ww (Medicare), 38 U.S.C. § 7302 (Veterans Health Administration), 42 U.S.C. § 256e and 256h (children's hospitals and teaching health centers), and Texas funding provisions at Education Code sections 58A.002 and 61.0594. It described the ACGME and its enforcement using Baylor Univ. Med. Ctr., Inc. v. Daneshfar and Prof'l Massage Training Ctr., Inc. v. Accreditation All. of Career Schs. & Colls.

On the conscience-rights point, the AG relied on the Texas Religious Freedom Restoration Act (Tex. Civ. Prac. & Rem. Code §§ 110.002, 110.003, 110.008) and the federal Religious Freedom Restoration Act (42 U.S.C. § 2000bb), both of which bar the government from substantially burdening religious exercise without a compelling interest pursued by the least restrictive means, and compared the coercion concern to Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 31.

Citations and references

Statutes:

• 42 U.S.C. § 238n (Coats-Snowe Amendment)
• 42 U.S.C. § 2000bb (federal Religious Freedom Restoration Act)
• Tex. Civ. Prac. & Rem. Code ch. 110 (Texas Religious Freedom Restoration Act)

Key cases:

• Baylor Univ. Med. Ctr., Inc. v. Daneshfar, No. 05-17-00181-CV, 2018 WL 833373 (Tex. App.—Dallas Feb. 12, 2018, pet. denied) (mem. op.) (describing ACGME accreditation and enforcement)
• Prof'l Massage Training Ctr., Inc. v. Accreditation All. of Career Schs. & Colls., 781 F.3d 161 (4th Cir. 2015) (accreditation and Title IV federal student aid eligibility)
• Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (forced union-dues deduction unconstitutionally coerced speech)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0395
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0395.pdf

Original opinion text

December 13, 2021

The Honorable Donna Campbell, M.D.
Chair, Committee on Veterans Affairs & Border Security
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0395

Re: Texas medical school compliance with Coats-Snowe Amendment, which prohibits discrimination against health care entities that refuse to provide or undergo training for induced abortion (RQ-0413-KP)

Dear Senator Campbell:

You ask several questions related to medical schools and accreditation standards of the Accreditation Council for Graduate Medical Education ("ACGME") in conjunction with the federal Coats-Snowe Amendment.¹ The Coats-Snowe Amendment, enacted in 1996, generally prohibits discrimination against a health care entity for refusing to engage in certain abortion-related training activities. It specifically provides that

[t]he Federal Government, and any State or local government that receives Federal financial assistance, may not subject any health care entity to discrimination on the basis that—

(1) the entity refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions;

(2) the entity refuses to make arrangements for any of the activities specified in paragraph (1); or

(3) the entity attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.

42 U.S.C. § 238n(a). A "'health care entity' includes an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions." Id. § 238n(c)(2). Plainly put, a health care entity includes a doctor, a residency program, and a student in a residency program. See id. § 238n(c)(3).

Your specific questions concern standards promulgated by the ACGME. The ACGME describes itself as "an independent, not-for-profit, physician-led organization that sets and monitors the professional educational standards essential in preparing physicians to deliver safe, high-quality medical care to all Americans."² The ACGME imposes requirements on graduate medical education programs to obtain and retain accreditation if the programs substantially comply with the requirements. See Baylor Univ. Med. Ctr., Inc. v. Daneshfar, No. 05-17-00181-CV, 2018 WL 833373, at *4 (Tex. App.—Dallas Feb. 12, 2018, pet. denied) (mem. op.). "If a program violates the ACGME's requirements, [it] may receive a warning or be placed on probation. If the violations are not cured, then the ACGME may withdraw its accreditation of the program."³ Id.

In a document you provide with your request, the ACGME clarifies its requirements regarding induced abortion training in graduate medical education programs.⁴ The ACGME states that "[a]ccess to experience with induced abortion must be part of residency education" and that programs must be structured such that residents may "'opt out' rather than 'opt in' to this curriculum, education, and training." ACGME Statement at 1. The ACGME also states that a program without a "specific family planning curriculum that includes direct procedural training in abortions . . . unless it is requested by and developed for a resident desiring training" is an opt-in curriculum. Id. at 2. The ACGME then characterizes an opt-in program as being non-compliant with its accreditation requirements.⁵ See id. at 2. With this background and context, we consider your inquiry.

¹ See Letter and Attachments from Honorable Donna Campbell, M.D., Chair, Senate Comm. on Veterans Affairs & Border Sec., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 16, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0413KP.pdf ("Request Letter" and "Attachments" respectively) (on file with the Op. Comm.).

² See https://www.acgme.org/About-Us/Overview. As of July 2020, ACGME is the sole accreditor for graduate medical education.

³ Accreditation implicates federal funding a graduate medical education programs may receive. See generally Prof'l Massage Training Ctr., Inc. v. Accreditation All. of Career Schs. & Colls., 781 F.3d 161, 167 (4th Cir. 2015) (noting that accreditation, among other things, entitles educational institutions to seek Title IV federal student aid funding). There are many sources of federal funds for graduate medical education programs. See 42 U.S.C. § 1395ww (providing for graduate medical education payments in support of Medicare program); 38 U.S.C. § 7302 (providing for graduate medical education payments under Veterans Health Administration); 42 U.S.C. § 256e (providing for graduate medical education payments in support of children's hospitals); 42 U.S.C. 256h (providing graduate medical education payments in support of teaching health centers); see also TEX. EDUC. CODE §§ 58A.002 (providing for the permanent fund supporting graduate medical education); 61.0594 (requiring the Higher Education Coordinating Board to administer a program to support graduate medical education programs).

⁴ See Request Letter Attachment - Review Comm. for Obstetrics & Gynecology, Accreditation Council for Graduate Med. Educ., Clarification on Requirements Regarding Family Planning and Contraception ("ACGME Statement") (on file with the Op. Comm.).

⁵ We received briefing from several medical programs/universities stating that they have not "been the subject of any inquiry, investigation, or enforcement activity against the 'opt-in' training approach." Brief from Daniel H. Sharphorn, Vice Chancellor & Gen. Counsel, The Univ. of Tex. System at 1 (July 15, 2021); see Brief from Robert F. Corrigan, Jr., Senior Vice Pres. & Gen. Counsel, Baylor Coll. of Med. at 1 (July 19, 2021).

I. Pursuant to the Coats-Snowe Amendment, and contrary to ACGME standards, Texas medical schools may provide training on induced abortions on an opt-in basis.

As discussed above, the Coats-Snowe Amendment prohibits state or local governments receiving federal financial assistance from discriminating against a doctor or student who refuses to undergo induced abortion training, or against a graduate medical education program that refuses to provide or require training in the performance of induced abortions. 42 U.S.C. § 238n(a). Reliance on the ACGME standards, which require induced abortion training, is inconsistent with, and thus conflicts with, federal law. The Coats-Snowe Amendment instructs state and local governments how to respond to such conflicting accreditation standards. It states that

[i]n determining whether to grant a legal status to a health care entity (including a license or certificate), or to provide such entity with financial assistance, services or other benefits, the Federal Government or any State or local government that receives Federal financial assistance, shall deem accredited any postgraduate physician training program that would be accredited but for the accrediting agency's reliance upon accreditation standards that requires an entity to perform an induced abortion or require, provide, or refer for training in the performance of induced abortions, or make arrangements for such training, regardless of whether such standard provides exceptions or exemptions.

Id. § 238n(b)(1). In other words, the Coats-Snowe Amendment requires the State of Texas to: (1) recognize as accredited any graduate medical education program that does not offer or require induced abortion training if it otherwise meets the licensing or accreditation criteria; and (2) license any doctor or student who completes their training at such a program or who does not otherwise participate in induced abortion training. Thus, while the Coats-Snowe Amendment contains no language directly requiring graduate medical education programs to provide induced abortion training on only an elective, opt-in basis, it effectively disregards ACGME's opt-out accreditation standard and allows those programs to provide abortion training on an opt-in basis without an accreditation consequence.

II. Opt-out induced abortion training may implicate conscience rights of doctors and students.

The language of the Coats-Snowe Amendment does not specify that individual graduate medical education programs must offer opt-in induced abortion training. But a program that forces a person to affirmatively opt-out of such training potentially implicates other conscience rights of doctors and students. For example, the Texas Religious Freedom Restoration Act (TRFRA) and the federal Religious Freedom Restoration Act (RFRA) protect a person's free exercise of religion. See TEX. CIV. PRAC. & REM. CODE § 110.003(a); see also id. §§ 110.002 (applying the TRFRA to "any ordinance, rule, order, decision, practice, or other exercise of governmental authority"), 110.008 (waiving sovereign immunity); 42 U.S.C. § 2000bb. Both the TRFRA and the RFRA prohibit the government from substantially burdening a person's free exercise of religion unless it is necessary to further a compelling government interest and is the least restrictive means of furthering that interest. See TEX. CIV. PRAC. & REM. CODE § 110.003(b); 42 U.S.C. § 2000bb(a)(3) (prohibiting governments from substantially burdening religious exercise without compelling justification). To the extent no compelling government interest exists for requiring doctors and students with conflicting religious beliefs to undergo such training, the State's or medical school's adherence to opt-out requirements could violate the TRFRA and the RFRA. Similarly, a court could determine the State's or a medical school's adherence to an opt-out abortion training requirement violates the First Amendment to the extent it coerces a person to forgo his or her First Amendment rights. Cf. Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2486 (2018) (holding that forced deduction of union dues where it was difficult to challenge the dues unconstitutionally coerced speech). Given these constitutional and statutory concerns, a graduate medical education program should implement opt-in induced abortion training.

S U M M A R Y

The Coats-Snowe Amendment, found in 42 U.S.C. § 238n, prohibits the State of Texas from discriminating against physicians, medical students, or graduate medical education training programs for their refusal to participate in abortion related training. It requires the State of Texas to disregard Accreditation Council for Graduate Medical Education accreditation standards that compel the provision of induced abortion training on an opt-out basis, thereby allowing graduate medical education programs to provide induced abortion training on an elective, opt-in basis.

Furthermore, a graduate medical education training program that forces a person to affirmatively opt-out of such training raises constitutional and religious freedom concerns and implicates conscience rights of doctors and students. Given these constitutional and statutory concerns, a graduate medical education program should implement opt-in induced abortion training.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee