The U.S. Department of Health and Human Services (HHS) closed out the year by announcing a proposed rule regarding protection against religious discrimination for those seeking or providing healthcare.
The Notice of Proposed Rulemaking entitled “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (PDF) was released by the Office for Civil Rights (OCR) on Dec. 29 and would partially rescind a 2019 OCR regulation. Three federal district courts held the 2019 Final Rule to be unlawful, thereby prompting the proposed change. Both policies question the First Amendment rights of religious practice and expression for healthcare providers in instances when patients seek 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,” said HHS Secretary Xavier Becerra in a press release. “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.”
The 2019 final rule issued by HHS sought to ensure that healthcare providers and administrations would not be penalized for denying care that they felt contended with their beliefs. Americans United for Separation of Church and State (AU) and the Center for Reproductive Rights (CRR) were two groups that filed lawsuits against the rule.
Along with federal lawsuits, 250,000 public comments were made in the Federal Register.
The American Bar Association stated that the 2019 HHS rule expanded religious liberty to the point of curtailing reproductive rights. "It also vastly expanded the individuals and entities who could claim a religious or moral exemption and the types of actions considered discrimination, heavily penalizing employers found liable for actions that might include simply requiring a receptionist to schedule appointments," wrote Amy Myrick, CRR senior staff attorney, and Sabrina Merold, CRR advocacy fellow.
According to the OCR, the new rule seeks to strike a “careful balance” between a patient’s right to timely care and a medical professional’s right to religious or conscious objections.
“Respecting such objections honors liberty and human dignity,” the proposed rule states. “It also redounds to the benefit of the medical profession. 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 abortions—to all who need them in order to protect patients’ health and dignity.”
The department stated that portions of the 2019 rule were “redundant, unlawful, confusing or undermine the balance Congress struck between safeguarding conscience rights and protecting access to healthcare, or because significant questions have been raised as to their legal authorization.”
The new rule would maintain the framework of the 2011 ruling entitled “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws.” Certain provisions from the 2019 rule will remain following modifications, according to the OCR.
Aspects of the 2019 rule maintained would include enforcement provisions and voluntary notice provisions along with applicable statutes.
The new rule would expand the definition of “federal healthcare provider conscience protection statutes” covered by the rule. Further changes are designed to ensure that all parties involved are better able to understand and advocate for their right to receive or deny care.
“Protecting conscience rights and enforcing the law to combat religious discrimination is critical,” said OCR Director Melanie Fontes Rainer in a press release. “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.”
Following the issuance of the Trump-era rule, the Southern District of New York, the Northern District of California, the Eastern District of Washington and the District of Maryland all filed suits challenging the rule.
Despite variations in exact ruling, courts commonly found that the rule exceeded the OCR authority, provisions were inconsistent in relation to the Emergency Medical Treatment & Labor Act and Title VII of the Civil Rights Act and the nature of the rule was “arbitrary and capricious,” according to the OCR.
Groups supporting the 2019 rule included the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Southern Baptist Ethics & Religious Liberty Commission, the Christian Legal Society, the Catholic Medical Association and the Family Research Council.
Groups that expressed concern included the American Academy of Family Physicians, the American Congress of Obstetricians and Gynecologists, the American College of Emergency Physicians and the American Academy of Pediatrics, The American Psychological Association, The Association of American Medical Colleges, American Nurses Association (ANA) and the American Academy of Nursing (AAN).
“ANA and AAN strongly support the right and prerogative of nurses—and all healthcare workers—to heed their moral and ethical values when making care decisions,” wrote the organizations in a letter to HHS in March 2018. “However, the primacy of the patient in nursing practice is paramount, and the moral and ethical considerations of the nurse should never, under any circumstance, result in the inability of the patient to receive quality, medically necessary, and compassionate care.”
Dec. 29 marks the beginning of a 60-day comment period, following which the OCR will post a final version of the proposed rule preceding implementation.
AU President and CEO Rachel Laser issued a statement applauding the Biden administration for fulfilling the promise made by President Joe Biden to overturn the 2019 policy.
“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," Laser said. "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.”
What remains to be seen is how outcomes of legal battles could contend with the new policy. A New Mexico-based doctor and the Christian Medical & Dental Associations (CMDA) represented by attorneys from the Alliance Defending Freedom (ADF) filed a suit against the state on Dec. 14.
The lawsuit (PDF) states that the 2021 Elizabeth Whitefield End-of-Life Options Act forces providers to offer referrals if they are unwilling to facilitate physician-assisted suicide. The new HHS rule also requires providers to refer patients to providers if they themselves refuse to provide patient care.
The ADF is also representing the CMDA in the U.S. District Court for the Central District of California (PDF) challenging a law similar to the New Mexico statute.