HHS Proposes New Federal Rule Limiting Health Workers’ Religious, Conscience Rights

U.S. Health and Human Services Secretary Xavier Becerra joins a panel during the Clinton Global Initiative (CGI), a meeting of international leaders that looks to help solve global problems, in New York City on Sept. 19, 2022. Photo by Spencer Platt/Getty Images

Department of Health and Human Services (HHS) officials are proposing new federal regulations they claim will better protect the religion and conscience rights of individuals seeking or providing health care services.

The proposed regulation—the Safeguarding the Rights of Conscience as Protected by Federal Statutes—was posted in the Federal Register on Dec. 29 for a 60-day comment period, after which officials in the HHS Office for Civil Rights (OCR) will post a final version before implementation.

The proposal is intended to follow up litigation that bogged down a May 2019 final rule issued by HHS during the Trump administration that sought to ensure that health care providers, including doctors, nurses, and administrators, who object on religious or other conscience grounds to procedures such as abortion, assisted suicide, sterilization, or trans-gendering surgeries, not be penalized for their beliefs.

The Trump rule had generated nearly 250,000 public comments in the Federal Register and multiple lawsuits were filed in federal court against it by groups such as Americans United for Separation of Church and State and the Center for Reproductive Rights, which succeeded in preventing implementation.

President Joe Biden promised during the 2020 presidential campaign to rescind the Trump proposal if it was implemented, and the proposal unveiled Dec. 29 is the fulfillment of that promise.

The crux of the issues raised by the Trump and Biden proposals is how can the First Amendment rights of religious practice and expression for health care providers be protected, while also assuring needed care to individuals seeking abortions, assisted suicide, euthanasia, and trans-gendering surgeries.

“No one should be discriminated against because of their religious or moral beliefs, especially when they are seeking or providing care,” HHS Secretary Xavier Becerra said in a statement accompanying publication of the proposal. “The proposed rule strengthens protections for people with religious or moral objections, while also ensuring access to care for all in keeping with the law.”

In the same statement, OCR Director Melanie Fontes Rainer said, “Protecting conscience rights and enforcing the law to combat religious discrimination is critical. Today’s proposed rule would strengthen these protections and reinforce our long-standing process for handling such conscience and faith-based objections. It also would take steps to help ensure that individuals are aware of their rights.”

In the Federal Register posting, OCR officials acknowledged that “some doctors, nurses, and hospitals, for example, object for religious or moral reasons to providing or referring for abortions or assisted suicide, among other procedures. Respecting such objections honors liberty and human dignity.”

But, the posting noted, “patients also have autonomy, rights, and moral and religious convictions. And they have health needs, sometimes urgent ones. Our health care systems must effectively deliver services—including safe legal abortion—to all who need them in order to protect patients’ health and dignity.”

Then the issue becomes whether health care providers can be forced to refer patients to other providers who they know will perform procedures they in faith or good conscience cannot facilitate?

Officials at AU, one of the groups that successfully challenged the Trump rule that sought to protect providers against being required to make such referrals, lauded the new Biden administration proposal.

Rachel Laser, AU’s President and CEO, said in a statement that “we applaud the Biden administration for taking positive steps toward protecting both religious freedom and patients’ health by rescinding the Trump-era Denial of Care Rule. No one should be denied medical treatment because of someone else’s religious beliefs.

“The Denial of Care Rule was a dangerous policy that weaponized religious freedom and put the health and lives of women, LGBTQ people, religious minorities and so many others in jeopardy. Today’s proposed rule recognizes the potential harm to patients and upholds the fundamental principle of church-state separation.”

But civil liberties law groups that focus on religious freedom cases see major problems with the HHS proposal.

Justin Butterfield, Deputy General Counsel at the Plano, Texas-based First Liberty Institute (FLI) told The Epoch Times that multiple federal laws are on the books that protect health care providers.

“Our nation has always respected the rights of conscience of religious objectors, and it’s vital we continue to do so. So many of our health care professionals entered the medical field because of their religious conviction to help those in need. We must not force them to choose between serving their communities and holding to their deepest religious beliefs,” Butterfield said.

“Federal law protects the rights of healthcare professionals who object to providing, paying for, providing coverage of, or referring for abortions. First Liberty is dedicated to ensuring that those long-cherished religious liberty rights are respected,” Butterfield added.

The groundwork for legal challenges to the new HHS proposal is already being laid , as seen in a related case involving a New Mexico law. That law provides that health care providers who object to assisted suicide can face substantial liabilities for not referring individuals seeking such care to another provider who will perform the procedure.

“New Mexico is unlawfully compelling physicians to speak a certain message about assisted suicide, even if they object for reasons of conscience or faith,” said Alliance Defending Freedom (ADF) Senior Counsel Mark Lippelmann in a statement.

“The Christian doctors we represent believe that every life is sacred and full of inherent value, and that assisted suicide ends an innocent human life without justification. The government should not force doctors to surrender their religious, moral, and ethical convictions,” Lippelmann said.

The ADF is representing the Christian Medical and Dental Association (CMDA) in challenging the New Mexico law in the U.S. District Court for New Mexico. The ADF is also representing CMDA in litigation in the U.S. District Court for the Central District of California challenging that state’s law that is similar to the New Mexico statute.

The federal district court agreed with ADF that the California law likely violates the First Amendment rights of medical providers by requiring them to participate in assisted suicide procedures by referrals.

“The ultimate outcome of this requirement is that non-participating providers are compelled to participate in the Act through [even its] documentation requirement, despite their objections to assisted suicide,” the District Court said in the California case.