A Proposed Rule by the Health and Human Services Department is purported to give healthcare providers sweeping discretion to refuse patients care for religious or moral reasons. The rule, Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, explains that since the U.S. has a long history of providing conscience-based protections for individuals and entities with objections to certain activities based on religious belief and moral convictions, they propose to revise regulations previously promulgated to ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate, in violation of such Federal laws.
Specifically, this proposed rule concerns Federal laws that provide:
- Conscience protections related to abortion, sterilization, and certain other health services to participants in programs—and their personnel—funded by the Department (the Church Amendments, 42 U.S.C. 300a-7);
- Conscience protections for health care entities related to abortion provision or training, referral for such abortion or training, or accreditation standards related to abortion (the Coats-Snowe Amendment, 42 U.S.C. 238n);
- Protections from discrimination for health care entities and individuals who object to furthering or participating in abortion under programs funded by the Department’s yearly appropriations acts (e.g., Consolidated Appropriations Act, 2017, Pub. L. 115-31, Div. H, Tit. V, sec. 507(d) (the Weldon Amendment) and at Div. H, Tit. II, sec. 209);
- Conscience protections under the Patient Protection and Affordable Care Act (ACA) related to assisted suicide (42 U.S.C. 18113), the ACA individual mandate (26 U.S.C. 5000A(d)(2)), and other matters of conscience (42 U.S.C. 18023(c)(2)(A)(i)-(iii), (b)(1)(A) and (b)(4));
- Conscience protections for objections to counseling and referral for certain services in Medicaid or Medicare Advantage (42 U.S.C. 1395w-22(j)(3)(B) and 1396u-2(b)(3)(B));
- Conscience protections related to the performance of advanced directives (42 U.S.C. 1395cc(f), 1396a(w)(3), and 14406);
- Conscience protections related to Global Health Programs to the extent administered by the Secretary (22 U.S.C. 7631(d); Consolidated Appropriations Act, 2017, Pub. L. 115-31, Div. J, Tit. VII, sec. 7018 (Helms Amendment));
- Exemptions from compulsory health care or services generally (42 U.S.C. 1396f & 5106i(a)(1)), and under specific programs for hearing screening (42 U.S.C. 280g-1(d)), occupational illness testing (29 U.S.C. 669(a)(5)); vaccination (42 U.S.C. 1396s(c)(2)(B)(ii)), and mental health treatment (42 U.S.C. 290bb-36(f)); and
- Protections for religious nonmedical health care (e.g., 42 U.S.C. 1320a-1, 1320c-11, 1395i-5 and 1397j-1(b)).
With this proposed regulation, the Department seeks to more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws. Specifically, the Department proposes to grant its Office for Civil Rights (OCR) overall responsibility for ensuring that the Department, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with these Federal laws.