In 2019, the Trump administration issued a regulation empowering the Department of Health and Human Services to robustly enforce federal conscience-protection laws. But now, the Biden administration is proposing to gut those rules, which would ultimately leave people more vulnerable to being forced to participate in controversial procedures that violate their conscience.
Here’s what you need to know about how the move might harm Americans’ civil rights, starting with a recap of how we got here.
Laws protecting conscience rights in health care are nothing new. For more than 40 years, federal law has protected people’s right to not participate in certain controversial procedures, such as abortion, sterilization, and assisted suicide.
Such laws include the Church Amendments, the Coats–Snowe Amendment, and the Weldon Amendment. Congress passed those laws with bipartisan support. They protect health care workers, hospitals, organizations that receive HHS funds, and others from having to provide, participate in, pay for, provide coverage of, or refer for certain procedures if doing so would violate their sincere religious beliefs or moral convictions.
While we have those laws in place, that doesn’t mean violations don’t occur. So, in the final weeks of President George W. Bush’s administration, HHS issued a rule providing specific instructions to ensure that department funds aren’t used in a way that violates conscience statutes, and that any recipients of federal funds understand their obligations under these laws. But the Obama administration largely reversed that rule before it could take effect.
In the absence of more robust policies at HHS to protect conscience rights, someone’s only recourse was to file a complaint with the HHS Office for Civil Rights if he or she believed he or she had been discriminated against. Unfortunately, that office had a poor track record of moving quickly—if at all—on such complaints.
That status quo was unacceptable. In 2018, the Trump administration established a Conscience and Religious Freedom Division within HHS’ Office for Civil Rights dedicated to protecting those important rights. In 2019, it also finalized a rule providing the new division with more ways to enforce conscience-protection laws.
The rule ensured that those who receive HHS funding fully comply with all federal conscience statutes. It also outlined how violations could be swiftly investigated and—importantly—fixed.
What does it look like for HHS to robustly enforce conscience-protection laws? In 2020, the Office for Civil Rights took away $200 million of California’s Medicaid funds. The state had violated federal law by requiring state health care plans to cover abortions—without any limitations—including in plans used by an order of nuns.
Health and Human Services also referred a hospital in Vermont to the Department of Justice. The hospital forced a nurse to assist in an elective abortion despite her objections. The hospital also refused to change its policies to comply with the Church Amendments and prevent its employees from having their conscience rights violated again.
Predictably, the Left challenged the conscience rule in court, and the Biden administration restored the Medicaid funding to California. The Biden DOJ also dropped the lawsuit against the Vermont hospital that refused to comply with the Church Amendments.
Now, HHS plans to roll back the conscience rule. The new one would gut enforcement provisions; remove critical definitions and explanations of what counts as discrimination or violations; allow the Office for Civil Rights to not respond to complaints at all; allow for informal, nonbinding resolutions; and more.
Why does this matter?
HHS is, in effect, trying to turn back the clock. Once again, Americans would have to rely on a (potentially hostile) government bureaucrat to investigate, and act on, a complaint that their civil rights have been violated.
Congress, for its part, is trying to improve things. The Conscience Protection Act would codify the Weldon Amendment and give victims a private right of action. (Currently, Weldon must be renewed every year in a funding bill.) Such a right—to sue in court—does not guarantee a particular outcome, but it would allow Americans to have their day in court, rather than rely on HHS alone for relief.
The comment period for the proposed Biden rule is open until March 6. That gives every American who cares about conscience rights a chance to explain why HHS should protect their rights of conscience, not find new ways to expose them to attack.
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