Texas AG: Accreditation Council for Graduate Medical Education (ACGME) Abortion Training Requirements Are Inconsistent with Federal Law

“The ACGME ... states that a [training] 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] non-compliant with its accreditation requirements.”

From a Texas Attorney General Opinion released last week, which concludes that Texas must ignore any ACGME accreditation refusals stemming from a program's not providing training in abortions.

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. The Coats-Snowe Amendment, {42 U.S.C. § 238n(a),} 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 {includ[ing] an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions} 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….

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." {As of July 2020, ACGME is the sole accreditor for graduate medical education.} The ACGME imposes requirements on graduate medical education programs to obtain and retain accreditation if the programs substantially comply with the requirements. "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." {Accreditation implicates federal funding a graduate medical education programs may receive.} …

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." 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. The ACGME then characterizes an opt-in program as being non-compliant with its accreditation requirements. With this background and context, we consider your inquiry.

[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. 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.

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. 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.

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. Given these constitutional and statutory concerns, a graduate medical education program should implement opt-in induced abortion training.

Summary

The Coats-Snowe Amendment … 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.