Protecting our Healthcare Conscience Freedoms
February 27, 2023
by Jeffrey Barrows, DO, MA (Bioethics) & Anna Pilato, MA
We have been privileged as American healthcare professionals to practice medicine according to our sincerely held beliefs, at least until the relatively recent past. However, as many of our members know from personal experience, those conscience freedoms are coming under increasing attacks from several quarters. In this post, we want to remind the reader of the conscience protections that exist at the federal level and explore why those protections are currently endangered.
While there were initial threats to healthcare conscience freedoms beginning in the 1960s with the development of oral contraceptives, the infamous Roe v. Wade decision legalizing abortion brought about the first federal statutes protecting healthcare conscience freedoms entitled the Church Amendments. Later statutes include the Public Health Service Act or the Coats-Snowe Amendment, which protected healthcare professionals in training, and the Weldon Amendment. All of these statutes sought to use the federal government’s purse strings as the enforcement mechanism by threatening to withdraw all federal healthcare reimbursement through Medicare and Medicaid if a healthcare entity was found guilty of transgressing these protections. Unfortunately, these statutes needed more details regarding how the regulations would be implemented and who within the federal government was responsible for investigating and enforcing complaints.
In December 2008, when the Bush Administration issued its conscience regulation, the U.S. Department of Health and Human Services(HHS) Office for Civil Rights was designated to receive and investigate complaints against these statutes. However, within just a few months, the Obama administration began its efforts to overturn this new regulation and leave the statutes without a precise enforcement mechanism. These efforts culminated in issuing their 2011 Rule, essentially removing the vast majority of the protections put into place by the Bush administration.
The Trump administration sought to restore those protections and even strengthened them in its 2019 Conscience Rule. Under the Trump administration, the HHS Office for Civil Rights (OCR) even initiated legal proceedings against the discriminatory actions of California, but the election loss prevented any conclusion to that legal battle. Now the Biden administration has issued its revision to the Trump Conscience Rule, seeking to roll back the protections in the 2019 rule, returning to the nebulous and ineffectual language of the 2011 Obama rule.
Though the 2019 rule doesn’t require employers to provide their employees with notice of their rights under federal conscience protection laws, the 2023 notice of proposed rulemaking proposes two important changes. First, it would remove the regulation stating that “OCR will consider an entity’s voluntary posting of a notice of nondiscrimination as non-dispositive evidence of compliance.” Second, it would alter the text to merely name the pertinent laws rather than include language from the 2019 rule model notice explaining what protections and rights the laws provide, such as “prohibiting exclusion, adverse treatment, coercion, or other discrimination against individuals or entities on the basis of their religious beliefs or moral convictions” and that individuals “may have the right under Federal law to decline to perform, assist in the performance of, refer for, undergo, or pay for certain healthcare-related treatments, research, or services (such as abortion or assisted suicide, among others) that violate your conscience, religious beliefs, or moral convictions.”
Without clear language within HHS regarding how these federal statutes are defined, investigated and enforced, they will continue to exist in name only as a guard dog without bark or bite. The Administrative Procedures Act requires the proposed revision to the Trump Conscience Rule to be put before the American people for public comment.
This is our opportunity as healthcare professionals to weigh in on the importance of conscience freedom protections as we seek to practice medicine according to our sincerely held beliefs. We have until March 6, 2023, to submit those comments. By law, the Biden administration must review and read all submitted comments. You can review this proposed revision and submit your comments here.
Please help us protect your ability to practice healthcare according to your sincerely held beliefs by participating in the democratic process and submitting your reaction and comment to this significant rule change.
We must do every thing we can to protect our freedom. It is our God given right.