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Health Department Narrows Regulation on Federal Health Care Worker Conscience Laws

  • March 7, 2011

The Department of Health and Human Services (HHS) has narrowed its 2008 “Bush era” final rule on health care worker conscience laws in a way some believe may restrict the right of health care workers to refuse to provide services in cases they find objectionable for religious or moral reasons without fear of discrimination.

The 2008 final rule, entitled, “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law,” was promulgated by HHS late in the George W. Bush Administration to clarify that federal “health care provider conscience protection” statutes (including the Church Amendments and the Weldon Amendment, named after the Senators who proposed them, and Section 245 of the Public Health Service Act) prohibit recipients of certain federal funds from discriminating against doctors and other health care providers based on their refusal to participate in providing health care services they find religiously or morally objectionable, such as abortions and sterilizations.  That final rule included definitions, a written certification requirement, and a complaint procedure, among other things.

Saying parts of the 2008 final rule were “unclear and potentially overbroad in scope,” HHS in its amendatory regulation rescinds all but the complaint procedure.  The amendment, on the other hand, adds an initiative led by HHS’s Office of Civil Rights (OCR) to increase health care providers’ awareness of the protections provided by the conscience protection statutes and the resources available to those who believe their rights have been violated.  OCR continues to be the office designated to receive complaints of violations.  The new final rule will become effective on March 25, 2011.

Controversial Regulation

The 2008 rule was one of a number of controversial “midnight regulations” that took effect just before President Barack Obama was sworn in.  Outgoing presidents, both Republican and Democrat, often have churned out controversial regulations shortly before leaving office to extend the lives of their administrations.  Once a regulation becomes effective, it may take an incoming administration that opposes the regulation years to undo it.  This was the case here.  The Obama HHS proposed rescinding the 2008 rule in early 2009.  It received more than 300,000 comments.  After reviewing the comments, HHS decided a partial rescission was appropriate.

Some see HHS’s proposed regulation as a step in countering a trend in which health care providers reportedly have refused to provide certain legal medical services they find religiously or morally objectionable.  A doctor refusing to perform in-vitro fertilization for lesbians, pharmacists refusing to fill prescriptions for emergency contraceptives, and an ambulance driver turning away a woman needing transportation for an abortion, are examples of this trend cited.

Critics say HHS’s amended regulation weakens the conscience protection statutes and does not inhibit sufficiently discrimination by health care providers against employees who in decline to participate is services they find objectionable on protected grounds. 

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