Biden Administration Proposes New Religious Conscience Rule for Health Workers

On December 29, 2022, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) proposed the rule, “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (the “Proposed Rule”). The Proposed Rule partially rescinds a 2019 rule that boosted the rights of medical workers to refuse to perform abortions or other services that conflicted with their religious or moral beliefs (the “2019 Rule”). The Proposed Rule focuses on strengthening protections for health care workers with conscience or religious freedom complaints without sacrificing access to a range of necessary services.

In 2019, OCR issued a regulation that provided broad definitions, created new compliance regulations and created a new enforcement mechanism for a number of statutes related to the conscience rights of certain federally-funded health care entities and providers. It allowed an expansion of religious liberty. Specifically, the 2019 Rule allowed HHS to strip federal funding from health care facilities pursuing adverse actions against workers who cite a religious or moral objection to providing care. The 2019 Rule raised questions on potentially hindering access to sexual and reproductive services or discriminating against health care entities not providing services for assisted suicide. The 2019 Rule was held unlawful by three federal district courts, but arguments were subsequently halted by the Biden administration. Now, the Proposed Rule proposes to partially rescind the 2019 Rule while reinforcing other processes in place for the handling of conscience and religious freedom complaints.

Ultimately, the core issue raised by the 2019 Rule and the Proposed Rule is protecting the First Amendment rights of religious practice and expression for health care providers while also assuring necessary care to individuals seeking abortions, assisted suicide, euthanasia, transgender surgeries and other services.

According to HHS, the Proposed Rule seeks to restore the longstanding process for the handling of conscience complaints and provide additional safeguards to protect against conscience and religious discrimination. According to HHS Secretary Xavier Becerra, the Proposed Rule is designed to strengthen protections for people with religious or moral objections while simultaneously ensuring access to care for all, in keeping with the law.

Further, according to OCR Director Melanie Fontes Rainer, the Proposed Rule will also take steps to ensure individuals are aware of their rights. Specifically, the Proposed Rule seeks to retain the 2019 Rule’s voluntary notice provisions of conscience protections and nondiscrimination laws (with some modifications), which will serve to inform the public, covered entities, patients and workforce of protections under the federal conscience and nondiscrimination laws and the Proposed Rule, if finalized. It would also provide information on filing a complaint with OCR if an individual believes these laws have been violated, and may provide additional information to patients on how to seek care.

As of the date of this post, the Proposed Rule has been submitted for publishing in the Federal Register, but publication has not yet been scheduled. Public comments on the Proposed Rule are due 60 days after publication of the Proposed Rule in the Federal Register.