HHS on Thursday proposed reversing an Obama administration policy so faith-based health and social service providers receiving federal funds no longer would have to inform clients about services they don't provide for religious reasons and would not have to refer them to alternative providers.
The rule also would clarify that HHS would not discriminate against faith-based organizations on applications for grants or awards on the basis of the organization's religious policies. That could affect Title X reproductive healthcare funding for pregnancy counseling groups that oppose contraception and abortion.
The Trump administration said the rule would allow religious organizations to carry out their mission consistent with the First Amendment and federal religious freedom laws.
"President Trump's administration is taking historic action to protect religious social service providers from discrimination in federal regulations," HHS Secretary Alex Azar said in a statement. "Today's action makes clear that the federal government cannot discriminate against people and institutions based on how they live out the dictates of their faith."
But ethics experts warned it could deprive patients and social service clients of information and options in seeking needed services. That's of particular concern given that a growing number of providers are controlled by Catholic and other faith-based organizations that impose religious restrictions on care.
The 56-page rule was released by HHS at the same time as eight other federal agencies proposed rules easing Obama administration requirements on religious organizations as to how they provide services and information to clients. It comes as President Donald Trump seeks to shore up his support among conservative religious groups heading into his re-election campaign.
HHS previously issued a rule allowing healthcare providers, health plans and individual staffers to refuse to provide services that violate their conscience. That rule was blocked by a federal judge in November.
In 2010, President Barack Obama signed an executive order requiring faith-based healthcare and social service providers to refer clients to an alternative provider if the clients objected to the religious policies.
The latest proposed rule, which follows up on Trump's May 2017 executive order, would eliminate that requirement as well as the mandate to post special notices about the referral procedure.
HHS said it is not aware of any case in which a beneficiary has actually sought an alternative provider.
The agency said it is discriminatory to require all faith-based providers, but not other providers of federally funded services, to refer beneficiaries to alternative providers, saying that conflicts with the Religious Freedom Restoration Act and the Attorney General's Memorandum on Religious Liberty.
But Arthur Caplan, a bioethics professor at New York University Langone Medical Center, disagreed. "If you are a religious organization that restricts the services you offer, you have to tell patients that's the case," he said. "If religious affiliation is relevant to patient care, then requiring notice to patients is not discriminatory."
The proposed rule could harm women who don't realize that the facility where they are seeking care doesn't provide the services they need, such as faith-based crisis pregnancy centers, said Nicole Huberfeld, a health law professor at Boston University.
"It's easy for a person who needs medical care to not see clearly what's available to them because seeking care is stressful," she said. "Withholding information is potentially damaging to the individual patient."
A study published in JAMA last year found that a large majority of U.S. Catholic hospitals do not disclose on their websites that they have religious policies limiting the types of reproductive and end-of-life services offered at their facilities and by their affiliated physicians.
Huberfeld said the proposed rule raises questions about how it squares with healthcare providers' ethical obligation to provide informed consent to patients, and how it lines up with state rules requiring providers to refer patients for services they don't offer.
Both she and Caplan expect legal challenges to the proposal.
"Medicine is committed to informed consent," Caplan said. "Patients deserve to know all their options."
