Last week President Donald Trump announced the release of a final conscience rule that seeks to protect healthcare workers and entities from discrimination when they exercise their freedom of conscience.
The Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) stated the final rule “fulfils President Trump’s promise to promote and protect the fundamental and unalienable rights of conscience and religious liberty, a promise he made when he signed an executive order in May 2017 protecting religious liberty.”
The rule is yet another effort by the Trump administration to provide support to enforcement of federal laws that protect freedom of conscience and religious liberty. The Obama administration superficially acknowledged such laws but did not enforce them.
According to HHS, the new rule ensures the enforcement of federal laws that protect healthcare providers, individuals and other health-related entities, such as charities, from being forced to participate in services such as abortion, sterilisation or assisted suicide.
In February 2018, HHS updated its initial five-year strategic plan that is devoted to “protecting the life of all Americans at every stage of life, beginning at conception”.
Among its endeavours was to establish a new conscience and religious freedom division in its OCR, dedicated solely to ensuring compliance with and enforcement of federal laws already in existence that protect the religious freedom of healthcare workers to refuse participation in services such as abortion.
The final rule, which replaces a 2011 rule created by the Obama administration, “revises existing regulations to ensure vigorous enforcement of Federal conscience and anti-discrimination laws” and places “enforcement and compliance responsibility” with HHS’s OCR.
The rule also “encourages the recipients of HHS funds to provide notice to individuals and entities about their right [to] be free from coercion or discrimination on account of religious beliefs or moral convictions”.
The Obama administration provided public support for abortion rights groups such as Planned Parenthood, arguing in a mandate set out in former President Barack Obama’s signature healthcare plan (the Affordable Care Act) that women’s “reproductive health services” – contraception, including abortion-inducing drugs – were essential services to be covered by health insurance.
“Accommodations” offered to those employers whose faith beliefs conflicted with the contraceptive mandate, however, simply shifted the costs of coverage from the employer to its insurer. In effect, employers, such as the Little Sisters of the Poor, were still required to provide coverage for services that were at odds with the tenets of their faith.
Trump signed an executive order in May 2017 to defend religious liberty. The order directed HHS to develop rules for conscience protections for faith-based organisations, such as the Little Sisters.
In January, however, an Obama-appointed federal judge blocked Trump’s executive order, continuing the struggle in the legal fight over Obamacare.
Some Republicans in Congress sought a legislative remedy to protect the rights of healthcare workers who said they were being forced to participate in procedures such as abortion under threat of losing their jobs.
The House approved a Conscience Protection Act in July 2016, but Obama opposed the measure and indicated he would veto it if it were presented to him. The Obama administration said in a statement the Conscience Protection Act “would have the consequence of limiting women’s health care choices”.
In March 2018 pro-life Republicans launched an effort to add a Conscience Protection Act to an omnibus spending bill in the House, but it was ultimately omitted from the bill. In announcing the new Trump administration rule, OCR director Roger Severino said the rule will aid in enforcing already existing freedom of conscience laws.
“Finally, laws prohibiting government funded discrimination against conscience and religious freedom will be enforced like every other civil rights law,” he said. “This rule ensures that healthcare entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life.”
Catholic leaders applauded the new rule but also observed that the conscience protections already embedded in federal law were often ignored during the previous Obama administration. They are seeking congressional protection for the freedoms of healthcare workers regardless of the preferences of the administration in office.
“Though these laws were passed on a bipartisan basis and have been policy for years, the previous administration did not fully enforce them, and now they are increasingly being violated,” said Archbishop Joseph Naumann, chairman of the US bishops’ committee on pro-life activities, and Louisville Archbishop Joseph Kurtz, chairman of the bishops’ committee for religious liberty.
They added that it is “essential that Congress provide permanent legislative relief through passage of the Conscience Protection Act in order to give victims of discrimination the ability to defend their rights in court”.