Three New Regs and two CMDA Court Cases Aim to Protect Faith-centered Professionals
September 5, 2019
by Jonathan Imbody
Christian Medical & Dental Associations (CMDA) and Freedom2Care (our center for freedom of faith, conscience and speech) recently submitted official comments on three federal regulations that significantly impact faith-based organizations and conscience-guided health professionals. We also have engaged in court cases, described below, related to two of these regulations. Each of these regulations, or rules, is detailed here and include:
- A final conscience protection rule by the U.S. Department of Health and Human Services (HHS) that spells out how 25 federal laws protect the freedom of health professionals to decline to participate in morally objectionable procedures and prescriptions;
- A proposed gender rule by HHS that aims to correct the previous administration’s transgender mandate, which has been halted by a nationwide preliminary injunction as a result of our federal court case; and,
- A proposed equal opportunity rule by the U.S. Department of Labor (DOL) that clarifies and enumerates the freedom of faith-based organizations to compete to partner with the federal government in grant programs.
Conscience protection rule
CMDA’s Washington office worked with HHS officials to establish and promote the 2008 conscience protection rule for health professionals. That rule enforced three federal laws by detailing specifically whom the laws protected and in what circumstances. However, in 2009, the Obama administration moved to rescind that regulation, and we launched Freedom2Care to defend the 2008 rule. We conducted professional nationwide polling that revealed that 91 percent of faith-based health professionals would quit their practice rather than compromise their conscience. I met with top Obama officials in the White House and explained how our polling of faith-based health professionals demonstrated the link between conscience protections and healthcare access, especially for poor patients. Nonetheless, the administration gutted the rule. The Trump administration in May of this year finalized a new conscience protection rule, this time based on a total of 25 federal laws. During the public comment period on the proposed rule, CMDA had submitted a supportive comment document. In its explanation and justification of its final rule, HHS referred eight times to that CMDA-Freedom2Care document. In explaining the rule, HHS Office of Civil Rights director Roger Severino noted, “America’s doctors and nurses are dedicated to saving lives and should not be bullied out of the practice of medicine simply because they object to performing abortions against their conscience.” CMDA and OB/Gyn member Dr. Regina Frost have intervened, with the legal expertise of Becket, in a federal court case to defend the new rule.
Becket is also representing the CMDA membership in a gender-related lawsuit. In 2006, HHS used its considerable authority under the Affordable Care Act (ACA) to attempt to go beyond Congress and biology by including one’s perception of gender in federal sex discrimination issues. As Becket explains about that rule and the lawsuit we launched in response, “A federal mandate issued in 2016 required doctors to perform gender transition procedures on any patient, including a child, even if the doctor believed the procedure would be harmful. “That rule was struck down in court after it was challenged by nine states, several religious organizations, and an association of over 19,000 healthcare professionals [CMDA]. “In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the personal decision to undergo gender transition procedures is kept between patients and their doctors, free from government interference. On May 24, 2019, HHS proposed a new rule that follows a court ruling, complies with accepted medical research and protects both the medical judgment of the doctor and the unique, individual needs of the patient.” As I explained in a public comment document on the proposed rule, submitted to HHS on behalf of CMDA and Freedom2Care, “Contrary to the media talking points of those who lobby for the old rule, the aim of our lawsuit was decidedly not to keep health professionals from caring for certain classes of patients such as transgender individuals. On the contrary, our members and the faith-based health community are motivated by faith to deliberately seek out and diligently care for the most vulnerable, stigmatized and medically underserved members of our society—including transgender individuals. “Our members love their patients, who are made in the image of God, and consider it a privilege to care for them. Indeed, CMDA encourages its members to take an oath to ‘love those who come to [them] for healing and comfort’ and to ‘car[e] for the lonely, the poor, the suffering, and the dying.’ “CMDA encourages its members to treat all patients. For example, CMDA’s official position statement on LGBT patients states, ‘Because we are guided by Christ, who assisted all who sought his help regardless of sexual or social status, CMDA affirms the obligations of Christian healthcare professionals to care for all patients in need, regardless of sexual orientation, gender identification, or family makeup, with sensitivity and compassion[.] . . . Christian healthcare professionals, in particular, must care for their same-sex-attracted patients in a non-judgmental and compassionate manner, consistent with the humility Jesus modeled and the love Jesus commanded us to show all people.’ “But although CMDA and its members believe that healthcare providers should treat all patients, it does not believe that such providers must perform all procedures, particularly ones that violate a professional’s conscience or sound medical judgment. “The personal decision to undergo transgender medical procedures should be kept between patients and their doctors, free from government coercion. Political activism and ideology should be replaced with sound principles, objective science and adherence to the fundamental conscience freedoms on which our civil rights rest.”
Equal opportunity rule
On August 15, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) announced “a Notice of Proposed Rulemaking intended to clarify the civil rights protections afforded to religious organizations that contract with the federal government. The proposed rule ensures that conscience and religious freedom are given the broadest protection permitted by law. “The proposed rule would clarify that religious organizations may make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government. The proposal also reaffirms employers’ obligations not to discriminate on the basis of race, sex, or other protected bases and does not exempt or excuse a contractor from complying with any other requirements. “‘Today’s proposed rule helps to ensure the civil rights of religious employers are protected,’ Acting U.S. Secretary of Labor Patrick Pizzella remarked. ‘As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.'” In a comment document submitted to DOL on behalf of CMDA and Freedom2Care, I noted, “We concur with the Department’s intention to define ‘Religion’ so that the term is not limited to religious belief but also includes all aspects of religious observance and practice. We have observed that those who would elevate their own ideology over freedom of religion often do so by attempting to constrict religious freedom to simply freedom of belief or worship. “No one actually needs government protection of the ability to believe or worship. “Belief and worship can be accomplished within the confines of one’s own mind and heart, unobservable by government. One can pray without anyone observing the prayer. One can give thanks to God without anyone observing the thanksgiving. “The religious protection that our founders focused on, accordingly, is the freedom to practice and carry out what one believes, in accordance with Whom one worships. This accord is often expressed as a conviction of conscience—a driving force behind America’s settlement by persecuted religious groups and a keystone of the Declaration of Independence and the U.S. Constitution. “Flowing from this definition of religion is the recognition that ‘religious contractors [may] not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.’ “If a religious group cannot prefer and hire those who share its beliefs, the group will lose its religious identity. Religion often motivates followers to perform acts of compassion and sacrifice. “Government attempts to neutralize religious influence have the effect of also neutralizing the acts of compassion and sacrifice that flow from religious belief.” Your comments on this proposed rule may be submitted electronically here by September 16, 2019.