HHS Releases Revised Health-Worker Religious Conscience Rule (2)

The Health and Human Services Department has revised a Trump-era rule that allowed the agency to strip funds from health-care facilities taking action against workers for citing religious or moral objections to providing care.

The Biden rule announced Tuesday would maintain provisions of the Trump rule—which never went into effect—but nix those that are “redundant or confusing, that undermine the clarity of the statutes Congress enacted to both safeguard conscience rights and protect access to health care, or because significant questions have been raised as to their legality,” the HHS said in its Federal Register filing.

“The Final Rule clarifies protections for people with religious or moral objections while also ensuring access to care for all in keeping with the law,” HHS Secretary Xavier Becerra said in a press release.

The Biden proposal is seen as an attempt to balance health worker and patient rights after the Supreme Court struck down federal abortion rights in 2022’s Dobbs v. Jackson Women’s Health Organization. It’s also among regulatory efforts by the agency to address discrimination, including measures meant to protect the disabled and LGBTQI+ people.

The Trump administration issued its version of the rule in 2019. Several federal courts, however, granted summary judgment for the plaintiffs and entirely vacated the rule, finding it defective for a number of reasons, including inconsistency with federal civil rights law and the Emergency Medical Treatment and Labor Act (EMTALA).

The Biden administration proposed its own version of the rule last year.

In its notice of proposed rulemaking, the HHS asked for public input on whether the Trump rule would have hindered access to sexual and reproductive services. The agency also sought information on complaints of discrimination involving the refusal to provide or cover abortions.

The HHS said in a Tuesday press statement that the agency received over 48,000 comments filed by reproductive rights groups, faith-based organizations, and others.

The HHS’ Office for Civil Rights is “still enforcing the conscience laws, they’re making sure that they have the resources to do that, they’re accepting responsibility to do that,” said Leon Rodriguez, who served as OCR director in the Obama administration. “But within that same framework, they’re being mindful to access to health care, and reproductive health care especially,” said Rodriguez, who’s now with Seyfarth Shaw LLP.

“On the one hand you have these laws they’re implementing, it’s clearly a not trivial religious liberty for the individuals who would want to invoke the protections of this law, but it exists alongside what at my time was a fragile right to choice and what right now is an extinguished right to choice,” Rodriguez said, referring to reproductive services.

Differing Views on Discrimination

Critics of the Trump rule (RIN 0945-AA10) characterized it as a vehicle for targeting abortion and other services that go against the views of religious individuals.

“The Biden administration rescinded the most harmful provisions of the Trump administration’s 2019 rule,” making “a crucial step toward insuring all people, especially underserved communities, can access the care that they need,” said Madeline Morcelle, a senior attorney with the National Health Law Program.

If implemented, the Trump rule would have “emboldened health-care providers and entities” to decline to provide sexual, reproductive, and gender-affirming health care in a discriminatory fashion, Morcelle said. “In light of the moment that we’re in,” with “waning access to abortion, gender-affirming care, and other essential services, the rule is quite important,” she said.

Supporters of the Trump administration’s approach, however, said the rule merely set forth an enforcement mechanism for existing rights, and that the new Biden rule (RIN 0945-AA18) is an attempt to undermine the Supreme Court’s Dobbs decision that cut down a federal right to abortion services.

“Americans shouldn’t be forced to violate their ethical and religious beliefs. Yet, every year, countless medical practitioners needlessly suffer threats to their livelihoods and affronts to their faith just for asserting their rights to conscience and religious freedom,” Matt Bowman, senior counsel at the advocacy group Alliance Defending Freedom, said in a statement.

ADF is the legal group behind Food and Drug Administration v. Alliance for Hippocratic Medicine, a case currently before the US Supreme Court that is likely to shape access to abortion medication in the US.

ADF likewise represented conservative doctors in a US Court of Appeals for the Fifth Circuit case blocking the Biden administration from enforcing an EMTALA guidance document.

“In its rule, HHS suggests it will continue its misguided use of the Emergency Medical Treatment and Labor Act to require doctors to perform abortions even though that federal law has no abortion requirement, and conscience laws provide no exception allowing forced performance of abortion,” Bowman said.

“Patients are best served by medical practitioners who are free to act consistent with their oath to ‘do no harm.’ Doctors, nurses, and other medical providers should enjoy this same constitutional protection, free to live and work in a manner consistent with their faith,” Bowman said.