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By Adam Sonfield
Senior Policy Manager
In mid-January 2018, the Trump administration took two steps to expand and enforce federal “conscience” protections, which allow individuals and organizations in the healthcare field to refuse to provide or be involved with services, information, and referrals to which they have religious or moral objections. These steps have serious implications for patients’ access to sexual and reproductive health services and other critical care.
On January 18, the U.S. Department of Health and Human Services (HHS) held a high-profile announcement that it was reorganizing its Office for Civil Rights (OCR), creating a new division that will focus on “conscience and religious freedom.”1 Administration officials, members of Congress, and conservative activists highlighted what they call rising intrusion into conscience rights. Among other things, they are objecting to laws requiring insurance coverage of contraception and abortion, public notice requirements for crisis pregnancy centers, attempts to require hospitals and healthcare professionals to provide abortion care when a woman’s life is endangered, and anti-discrimination protections for LGBTQ individuals. Notably, OCR handled more than 30,000 total complaints on all issues in 2017,2 but justified the creation of the new “conscience” division on the strength of just 34 such complaints.1
The next day, HHS unveiled a massive set of proposed regulations to interpret and enforce more than 20 different statutory provisions related to the new division’s mission.3 That includes not only long-standing laws related to abortion and sterilization in the United States, but also laws related to global healthcare assistance, end-of-life care, and much more. The proposed regulations mirror and expand on controversial regulations put forth at the end of the George W. Bush administration. The 2008 regulations generated more than 300,000 public comments, were immediately challenged in court, and then were rescinded almost entirely during the Obama administration.4
The 2018 version of the proposed refusal regulations, like the 2008 version, purports to clarify key terms, but in effect is redefining those terms to expand the laws’ reach. In the process, the proposed regulations raise numerous questions over what have been long-settled standards of law and practice. For example:
The proposed regulations also greatly expand the powers of OCR to investigate threatened, potential, or actual violations of the laws and to enforce their compliance. Advocates for sexual and reproductive health and rights and for LGBTQ health and rights are working to identify all the potential harms of the new regulations and to organize a robust campaign of public comments before a March 27, 2018, deadline.
Financial Disclosure: Consulting Editor Robert A. Hatcher, MD, MPH, Nurse Planner Melanie Deal, MS, WHNP-BC, FNP-BC, Author Rebecca Bowers, Executive Editor Shelly Morrow Mark, Copy Editor Savannah Zeches, and Editorial Group Manager Terrey L. Hatcher report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study.