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 The 2008 regulations generated more than 300,000 public comments, were immediately challenged in court, and then were rescinded almost entirely during the Obama administration.4

Regulations Raise Numerous Questions

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:

  • Under the Title X family planning program, all clients found to be pregnant must receive nondirective counseling on all of their legal options, including abortion, and referral upon request. Under the proposed regulations, could that requirement be enforced? How would HHS ensure that every Title X client is able to receive this counseling and referral if individual providers and entire programs were allowed to refuse?
  • Long-standing federal and state laws require healthcare institutions to provide care in an emergency. Could institutional healthcare providers, such as hospital emergency rooms, use the proposed regulations to refuse to provide emergency care, such as an abortion necessary to preserve the life a woman?
  • Title VII of the Civil Rights Act has long governed religious discrimination in the workplace and balances the religious rights of workers with the practical needs of employers, including their ability to provide needed care to their patients. Would this balancing still be permitted under the proposed regulations, or would religious objections always take precedence over patients’ needs? For example, could family planning clinics be forced to employ individuals unwilling to provide, discuss, or even schedule appointments for contraception?
  • Healthcare professionals have ethical and legal responsibilities to ensure that patients have the information they need to provide informed consent to care. Yet, the new refusal regulations encompass the provision of counseling and information on topics and services that healthcare personnel find objectionable. How would healthcare institutions ensure that patients receive the information they need? Would personnel even be required to notify patients and employers when they refused to provide information or services?
  • Federal and state civil rights laws protect against discrimination against patients based on a variety of characteristics, such as race, gender, sexual orientation, immigration status, disability, and HIV status. Would these civil rights laws always take precedence? Or could the proposed regulations allow personnel or institutions to refuse to provide some or all services to entire categories of patients?
  • The proposed regulations appear to apply certain federal refusal laws to international, foreign, and multilateral organizations. How could large international agencies, such as the World Health Organization, require, monitor, and certify compliance by their numerous local sub-grantees? And could these laws conflict with the laws of other countries?

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. 

REFERENCES

  1. Cha AE, Eilperin J. New HHS civil rights division charged with protecting health-care workers with moral objections. Washington Post, Jan. 18, 2018. Available at: http://wapo.st/2swQQCy. Accessed Feb. 16, 2018.
  2. Department of Health and Human Services. FY 2019 HHS Budget in Brief, 2018. Available at: http://bit.ly/2G8qqt5. Accessed Feb. 16, 2018.
  3. Department of Health and Human Services. Protecting statutory conscience rights in health care; delegations of authority. 83 Fed Reg 3,880 (Jan. 26, 2018). Available at: http://bit.ly/2Hk4sVo. Accessed Feb. 16, 2018.
  4. Stein R. Obama administration replaces controversial ‘conscience’ regulation for health-care workers. Washington Post, Feb. 18, 2011. Available at: http://wapo.st/2C0LKCt. Accessed Feb. 16, 2018.