HHS makes changes to strengthen “conscience protections”

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WASHINGTON — The United States department of Health and Human Services (HHS) issued two announcements last week concerning “conscience protections” for health-care workers and state programs. These announcements are the latest in the Trump administration’s attempts to bring religious freedom rhetoric to the forefront within a deeply-divided political climate.

[Sarah Stierch.]

On Jan. 18, the HHS announced that it has formed a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR). According to the announcement, the division’s purpose is “to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

OCR director Roger Severino said, “Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced.” The administration believes that the rules governing religious freedom protections with respect to healthcare are not currently being enforced and that the language is too broad to be effective.

Acting HHS Secretary Eric D. Hargan said, “President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom. That promise is being kept today. The Founding Fathers knew that a nation that respects conscience rights is more diverse and more free, and OCR’s new division will help make that vision a reality.”

In addition to this new policing division, HHS has revealed a proposal to enact stronger rules. On Jan. 19, the HHS announced the proposal, which is titled “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.” It opens:

The Department proposes 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. Through this rulemaking, the Department proposes to grant overall responsibility to its Office for Civil Rights (OCR) for ensuring that the Department, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with Federal laws protecting the rights of conscience and prohibiting associated discriminatory policies and practices in such programs and activities. In addition to conducting outreach and providing technical assistance, OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints.

The thrust of the rule is to strengthen HHS’ ability to police the regulations already in place and to give OCR and its new division the “overall” authority to do so. Within the proposed rules, HHS specifically singles out certain medical cases that typically illicit conscience- or religion-based objections. These procedures and medical related actions include, abortion, sterilization, assisted suicide, any ACA mandates, the execution of advance directives, exemptions from compulsory health care and screenings including vaccinations and mental health treatment, and religion-based, non-medical treatments.

“With this proposed regulation, the Department seeks to more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws,” the rule reads.

In the same Jan 19 press release, HHS also announced that it would be rescinding a 2016 letter forcing state Medicaid programs to comply with federal law that restricted their ability to take certain actions against “family-planning providers that offer abortion services.”

The April 2016 letter from HHS to state Medicaid directors read, in part:

The states may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers—whether individual providers, physician groups, outpatient clinics or hospitals—solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice.

The announcement reads, “HHS’ Centers for Medicare & Medicaid Services (CMS) is issuing new guidance to state Medicaid directors restoring state flexibility to decide program standards.” In other words, the states can now take action against or deny qualification for Medicaid services to family planning providers that offer certain “legally permissible services,” including abortions.

The HHS, which is touting the new rules and the stepped-up enforcement as “major actions to protect conscience rights and life,” is following the recent trend to establish or reestablish laws, regulations, and rules to reportedly protect religious freedoms within publicly-funded spheres.

However, the question which remains is whether these new “religious freedom” rules are indeed global protections for all, and if they are even necessary. Are these often-celebrated provisions simply enacted to protect certain religious communities at the expense of others? Where are the lines drawn when sincerely-held convictions do conflict?

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Efforts to enact federal “conscience protections” in some form are not new. Both state and federal RFRAs are non-medical related examples of such legislation, and they were relied upon for such well-known cases such as the 2014 Burwell v Hobby Lobby Supreme Court decision.

In that case, the Hobby Lobby owners sued Kathleen Sebelius, the Secretary of HHS at the time, and challenged the ACA contraception requirement, holding that it violated their rights. The Hobby Lobby owners have built their company around Biblical concepts and their own “sincerely-held Christian beliefs,” to borrow from RFRA language. Contraception, in their opinion, is wrong.

That case focused on the rights of for-profit companies to decline certain health programs that violated their religious beliefs. However, that case and many others, including the pending Masterpiece Cake case, dance in that difficult intersection where religious belief and medical care meet.

Prior to 2018, the HHS itself already had several rules in place, most of which were established decades ago. For example, the 1973 Church amendments “protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions,” as well as prohibiting personnel discrimination against individuals who performed or refused to perform abortion, based on moral convictions.

The HHS lists the applicable laws and rules on its new conscience and religious freedom website, along with instructions on how to submit a complaint.

Reactions have been mixed, as would be expected in a political climate that appears to be increasingly polarized. Outspoken entities and individuals fall within predictable lines.

Proponents tout the changes as positive movements forward to support religious freedom and the protection of life. Students for Life president reportedly called the changes “an amazing accomplishment.” She added:

This city has been transformed in the past year. You can’t walk five feet with the Department of Human Services without running into a pro-lifer, and that’s where it counts. Personnel is policy, and today, we are witnessing the fruit of all of that labor.

Russell Moore, of the Southern Baptist Convention lobbying arm, said in a statement, “I am thankful that HHS recognizes how imperiled conscience rights have been in recent years in this arena and is actively working and leading to turn the tide in the other direction.”

As is predictable, organizations, which represent religious populations who have strong beliefs with regard to any medical-related procedure or issue, came out as the biggest supporters of the HHS changes. Joining them in that support are conservative political organizations such as the Heritage Foundation (THF).

THF spokesperson Melanie Israel reportedly said, “Conscience violations continue to occur, and it is critical that the administration responds appropriately. Ensuring that HHS funds do not support morally coercive or discriminatory practices or policies in violation of federal law should not be remotely controversial.”

At the same time, the American Civil Liberties Union (ACLU) and Americans United for the Separation of Church and State (AU) see this as another indicator of the Trump administrations attempts to erode certain civil rights.

Louise Melling, deputy legal director of the ACLU, had the following reaction:

[The HHS] announcement shows us, once again, that the administration is doubling down on licensing discrimination against women and LGBT people, all in the name of religion. The administration has already shown its hand earlier this year by adopting rules that permit virtually all manner of businesses to refuse to comply with laws providing contraception coverage.

We may not know exactly what this new division will look like in practice, but we do know that this means they prioritize religious liberty over the health and civil rights of women, transgender people, and others. They are prioritizing providers’ beliefs over patients’ health and lives. This administration isn’t increasing freedom — they’re paving the way for discrimination.

Maggie Garrett, legislative director of AU, issued the following statement:

The Trump administration is taking yet another step to elevate the religious beliefs of health care providers above the medical needs of patients. The rule puts patients’ health and well-being in jeopardy and could cause serious harm to those denied critical and lifesaving care.

Women and LGBTQ patients are clearly the target of today’s discriminatory rule, but its reach goes even further and could negatively affect the health care of many others.

Religious freedom is fundamental, but so is the right of patients to access the health care they need. This rule betrays both. No one should be denied lifesaving health care because of someone else’s religious beliefs. That’s just plain discrimination.

The timing of the announcement with its particular focus did not go unnoticed by opponents. Jan. 19 marked the 45th anniversary of the first March for Life, an event that happened only days before the famous Jan. 22 Roe v. Wade decision in 1973.

At that march’s 45th gala celebration, President Trump proclaimed Jan. 22 as National Sanctity of Human Life Day.

Then, at a separate gala event, Vice President Mike Pence reportedly said, “For the first time in a long time, America has an administration that’s filled top to bottom with people who stand without apology for life.”

However, like other recent changes to policy affecting religion, it is difficult to know if these new rules and the establishment of a policing division will have any real affect on an individual’s lived experience. Could it all be trendy rhetoric and empty legislation, or will there be more cases similar to the not-yet-concluded Jionni Conforti v. St. Joseph’s Healthcare System?

It is also important to note the inclusion of the newly adopted usage of the word “conscience.” It is now being used alongside the word “religion, rather than as simply a synonym for religious belief. Does this open up the possibility for greater complications through ambiguity or through a term that has nearly no concrete definable proofs?

Dr. Ira Lupu, a law professor at George Washington University, told the Washington Post, “There’s going to be a question of how it’s going to work and who, if anyone, is going to be harmed by it. Until we see how it’s applied, you can’t say anything definitive.”

AU, on the other hand, is convinced that problems will occur. “This new rule will spark litigation.”

The HHS rule proposal has not been accepted yet, and must wait at a comment period. However, Trump has appointed a new HHS secretary, former pharmaceutical industry official Alex Azar. How he affects these and other HHS changes is also yet to be seen.