The Health and Human Services Department has once again revisited conscience protections for providers who object to delivering medical services such as abortions on religious or moral grounds.
HHS issued a final rule Tuesday that takes effect immediately and mostly rescinds a 2019 regulation that aimed to broaden the conscience policy but was struck down by federal courts before HHS implemented it. HHS published a draft version of the new rule in 2022.
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The conscience rule debuted during the George W. Bush administration in 2008 and becomes a political football each time the White House changes hands between Republicans and Democrats. President Barack Obama unwound the regulation in 2011, President Donald Trump restored and strengthened it in 2019 and now President Joe Biden has essentially reinstituted the Obama-era version of the rule.
HHS characterized the new regulation as balanced between patient and provider rights. The latest iteration maintains the principle that healthcare professionals may not be forced to violate their religious or moral beliefs in the course of their work.
“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 news release.
U.S. law prohibit recipients of federal funding, including Medicare reimbursements, from discriminating against healthcare providers who refuse to perform or participate in certain services based on moral objections or religious beliefs, such as abortions and sterilizations.
The Bush administration regulation required hospitals and other providers to certify compliance and empowered the HHS Office for Civil Rights to enforce the rule. Many of its provisions were never operationalized because it took effect on the day of Obama’s inauguration, and the new administration declined to implement it.
Instead, the Obama administration later issued a new rule with a narrower scope and without a certification requirement. In addition, the Affordable Care Act of 2010 expanded conscience rules to health insurance companies that sell on the federal exchange marketplaces.
Under Trump, HHS substantially expanded conscience protections by widening who was covered, beefing up enforcement, creating a special division of the Office for Civil Rights to field complaints and reinstating the certification requirement. The Trump administration also sought to allow providers to opt out of a greater number of medical interventions than before, including abortions, ectopic pregnancy care, contraception, gender dysphoria treatment, vaccine administration and physician-assisted suicide. Covered entities that did not comply could have lost federal funding, including Medicare payments.
The Biden administration tossed the parts of the Trump administration regulation that courts ruled unlawful, including the provisions expanding it to cover more workers and some of the reporting requirements. HHS retained a mandate that employers notify employees of their rights under the conscience rule.
Hospitals and other healthcare employers may still lose funding or face other penalties if they violate the law, but HHS will first seek voluntary compliance.
The healthcare sector largely opposed the Trump administration regulation. For example, the American Medical Association said the rule would have allowed physicians to “refuse medically appropriate care even when their refusal jeopardizes another’s life and safety."
