The United States has long been a beacon of freedom in the world, and it has held the hope of a better life even before it was an independent nation. We see this exhibited in history when the Pilgrims left Europe in 1620 to come to the New World. They risked everything, including their lives, and faced unknown challenges to seek religious freedom and escape the constraints of a government imposing its will upon the people’s consciences.

 

William Allen, CEO of the Center for Urban Renewal, is quoted in an article titled “How Mayflower Compact Influenced the American Concept of Rule of Law.” He says, “Perhaps most importantly, the political foundation of the Pilgrim community was rooted in their religious tenets. The right of conscience, Allen said, was the catalyst for all of the Pilgrims’ actions. From the moment they created their company, to their sailing to New England, to their formation of the Plymouth Colony, the right of conscience was at the center of each decision.”

 

Now we fast forward to the 21st century, and the desire to live in a country that protects our conscience freedoms and our deeply held religious beliefs remains strong. The government has long promised that it will protect the rights of healthcare professionals of faith to practice healthcare consistent with their religious beliefs and conscience. This has been codified by numerous federal laws passed by Congress. Some examples include the Religious Freedom Restoration Act (RFRA), which explicitly prohibits any agency or official of the United States government from substantially burdening a person’s free exercise of religion. The Church Amendments were passed with strong bipartisan support in the wake of Roe v. Wade to ensure that no one was forced to participate in an abortion contrary to their religious beliefs. The Coates-Snowe Amendment, which was passed as part of the Public Health Service Act, protects against abortion-related discrimination in the training and licensing of physicians.

 

Unfortunately, some courts have held that the enforcement mechanism built into these laws relies solely on withholding federal funds, which is at the discretion of the U.S. Department of Health and Human Services (HHS). Practically speaking, the healthcare professionals protected by these laws heavily rely on HHS to enforce these laws.

 

Because of this reliance on HHS for enforcement, there has been a battle at the federal level, making religious freedoms seemingly dependent on who occupies the Oval Office. All too often, this results in conscience freedoms being sacrificed on the altar of ideology.

 

Nowhere is that clearer than with the Conscience Rule. The Bush Administration released its healthcare conscience final rule in December 2008. It clearly outlined conscience protections existing in federal law and recognized the role of the HHS Office of Civil Rights (OCR) to receive and investigate allegations of violations of conscience made by healthcare professionals. The rule was finalized at the end of that Administration. The Obama Administration sought to substantially weaken these protections, which was accomplished through its 2011 rule. Then, under the Trump Administration’s 2019 rule, key federal statutory conscience protections were defined and the HHS OCR was once again tasked with upholding federal law. Unfortunately, the 2019 rule was challenged in three federal district courts and was vacated, though the regulation remained on the books. HHS OCR has continued to operate under the framework of the Obama Administration’s 2011 rule ever since.

 

The latest iteration of the healthcare conscience protection regulation is the 2024 rule released in January 2024 by the Biden Administration. Ironically titled “Safeguarding the Rights of Conscience as Protected by Federal Statues,” it goes into effect on March 11, 2024. The rule partially rescinds the 2019 rule, deleting key definitions against religious discrimination, removing requirements that recipients of federal funds confirm that they are obeying federal conscience laws and neutering substantive enforcement mechanisms under the purview of OCR.

 

With this rule, HHS has undermined federal law. The purpose of its regulation should be to implement laws already passed by Congress, not weaken or destroy them. While this rule may again be amended in the future, amid ever-changing political winds, the lack of consistent enforcement of federal conscience statutes highlights the importance of state laws protecting healthcare conscience freedoms, such as the MED Act.

 

While provisions of healthcare conscience rules have been diminished, conscience protections as passed by Congress are still in full effect and are the law of the land. If you believe your conscience freedoms have been violated, we encourage you to file a complaint with OCR. Here is an explainer that details how to file a conscience complaint, as well as a religious accommodation from your employer.

 

Thank you for engaging in the process.