Will New HHS Rule Weaken Conscience Protections for Medical Providers?

​The Department of Health and Human Services recently issued a final rule entitled “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” It’s a deliberate but moderated rollback of a Trump-era rule that sought to protect physicians and nurses from being forced to perform medical procedures that violate their consciences.
 
This is but the latest in a long-running back-and-forth between presidential administrations on the enforcement of statutory conscience provisions passed by Congress. Those laws – the Church Amendments, the Coates-Snowe Amendment, the Weldon Amendment and others – precondition the receipt of federal dollars for health care entities on the expectation that recipients respect the religious liberties of providers who object to performing abortions or other procedures as a matter of conscience.
 
In 2008, the Bush Administration attempted to put an enforcement mechanism in place through HHS rulemaking that would have authorized the agency to ensure compliance. In 2011, the Obama Administration rescinded much of that rule. The tug-of-war continued in 2019, when the Trump Administration again attempted to enshrine some means of enforcement within the department’s regulations.
 
That proposed rule permitted “individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons." More critically, it allowed HHS to potentially defund healthcare entities that violated that dictum.
 
Now it’s Biden’s turn to tug back. According to the newest version of the conscience framework, it “retains, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections, but eliminates others 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.”
 
Behind this regulatory speak is a clear desire to weaken the agency’s enforcement power on these issues of conscience.
 
For their part, the agency asserts that modifications are necessary to strike an appropriate balance between provider and patient rights. And to be fair, parts of the Trump rule remain in place, including boilerplate that protects “the rights of individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons."
 
The good news is that this new rule is not an actively hostile rule to healers’ conscience rights. But the change inspires Protect The 1st to give close scrutiny to this rule’s enforcement.