Dive Brief:
- The HHS Office of Civil Rights has again updated guidance on providers’ conscience rights. The latest iteration, announced on Tuesday, aims to strike a balance between honoring providers’ religious and moral beliefs and ensuring access to healthcare, according to the agency.
- President George W. Bush created conscience rules in 2008, which codify the rights of healthcare workers to refuse to perform medical services that conflict with their religious or moral beliefs. Since then, subsequent administrations have rewritten the rules, with Democrats limiting the scope and Republicans expanding conscience protections.
- The most recent revision largely undoes a 2019 Trump-era policy — which never took effect — that sought to expand the rights of healthcare workers broadly to refuse to perform medical services, such as abortions, on religious or moral grounds.
Dive Insight:
Though portions of the Trump-era policy were blocked by three federal courts, the agency said the new rule — which was first proposed in December 2022 — strengthens protections against conscience and religious discrimination while also protecting patient rights.
“Some doctors, nurses, and hospitals, for example, object for religious or moral reasons to providing or referring for abortions or assisted suicide, among other procedures. Respecting such objections honors liberty and human dignity,” the HHS said in response to comments on the proposed rule.
Still, the HHS said that Congress struck a balance when crafting Title VII of the Civil Rights Act of 1964, which details employers’ obligations to accommodate employees’ religious observance unless doing so would create “undue hardship on the conduct of the employer’s business.”
The 2019 rule strayed from that balance by requiring employers to provide absolute accommodation for employees’ religious beliefs, the HHS said. The guidance would have allowed employees to refuse to do primary functions of their jobs or refuse to provide care in emergencies.
“Patients also have rights and health needs, sometimes urgent ones. The Department will continue to respect the balance Congress struck, work to ensure individuals understand their conscience rights, and enforce the law,” the agency said in a response to comments on the proposed rule.
The rule also removes the 2019 certification requirement, which tied federal funds to healthcare providers’ submissions of compliance “assurances and certifications.” It maintains that employers must notify employees of their rights under the conscience rule.
During the open comment period, the AHA supported the revisions, stating the rule would “reduce regulatory burdens on hospitals, including especially onerous reporting requirements.”
Other critics of the Trump-era policy applauded the new rule.
“This rule reaffirms that patient health comes first,” the National Women’s Law Center said in a press release. “The care a patient receives should never be dictated by the personal or religious beliefs of health care providers or politicians. We commend the Biden administration for taking action to protect and advance patient access to health care.”
The new conscience rule comes as access to abortion dwindles following the Supreme Court’s decision in June 2022 to overturn Roe v. Wade and as states pass laws restricting access to gender-affirming care.
