WASHINGTON — The Department of Health and Human Services (HHS) recently released the final version of a new rule that aims to protect health care providers from religious discrimination by strengthening enforcement mechanisms for existing laws that protect conscience rights for those who don’t want to participate in provision of services such as abortion, contraception and sterilization.
While critics claim that the rule is too broad and could limit health care access, religious health care providers and legal experts are welcoming the rule.
The rule comes out of the Trump administration’s Conscience and Religious Freedom Division, which was created in January 2018 to enforce conscience laws and hear complaints of conscience-rights violations.
Roger Severino, director of the Office for Civil Rights at HHS, said in a statement to the Register that the rule “provides enforcement tools to federal conscience protections that have been on the books for decades” and “does not create new substantive rights.”
He emphasized that “faith-based providers, just like all providers, should be allowed to serve those most in need without fear of being pushed out of the health care system because of their beliefs, including declining to participate in the taking of human life.”
In a May 2 HHS statement announcing the final rule, the department explained, “This final rule replaces a 2011 rule that has proven inadequate, and ensures that HHS implements the full set of tools appropriate for enforcing the conscience protections passed by Congress. These federal laws protect providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide.”
Groups like the American Civil Liberties Union (ACLU) and Planned Parenthood have responded by claiming that the rule will be a barrier to health care and will permit discrimination.
“In allowing doctors, nurses and even receptionists to deny care to patients, the Trump-Pence administration is providing legal cover for discrimination,” Planned Parenthood head Leana Wen argued. “This will widen health care disparities and worsen health outcomes for those who already face too many barriers to care.”
Louise Melling, the ACLU’s deputy legal director, told NPR that the regulation’s language was too broad, because the rule protects all health care workers who have an “articulable connection” to a procedure such as abortion or sterilization, such as those who check patients into a hospital or take their blood pressure.
The city of San Francisco has already filed a lawsuit against the rule, claiming that it “would increase discrimination in health care” and that the rule is asking the city “to prioritize providers’ religious beliefs over the health and lives of women, lesbian, gay, bisexual, or transgender people, and other medically and socially vulnerable populations.”
Respecting Rights of Conscience
Kevin Theriot, senior counsel and vice president of Alliance Defending Freedom, which has handled many religious-liberty cases, told the Register that those who have conscientious objections to procedures are not discriminating.
“Our clients that have conscientious objections to participating in abortion or participating in, for instance, sex-change therapy or any of those kinds of things, they don’t discriminate based upon a person’s sexual orientation or their sex or anything like that,” he said. “What they’re saying is they shouldn’t be forced to participate in a procedure that violates their convictions. They won’t do that procedure for anybody, so there’s no discrimination going on at all. What’s going on is acknowledging our time-honored practice here in America of respecting rights of conscience.”
Theriot emphasized that being forced to violate their conscience “is a legitimate concern” for many in the health care industry, and the rule brings much-needed “enforcement mechanisms to the right-of-conscience area.”
“We just got an inquiry from someone in California recently who was being told that they would now have to participate in abortion: They work for a major hospital there, so this is an ongoing concern,” he said. “We’ve represented women in the past and men who have been forced to do this, even though it violates their convictions, and so we really are appreciative that there’s going to be a little more teeth to these regulations that will prohibit at least people who get government funding from discriminating against people.”
Theriot also addressed the ACLU’s claims that the rule provided too broad of an allowance for conscientious objection.
“The problem is the Supreme Court has said over and over again that ‘the person with the conscientious objection gets to say whether or not something is directly implicating their conscience.’ That’s not something that the government gets to articulate,’” he said.
He gave the example of somebody saying, “We don’t force Jewish people to violate their convictions; we just say that you can’t wear a yarmulke.” In such a case, he explained, “that only applies to Jewish people, and they’re the ones who get to say whether having a head covering is important enough for their convictions that they can’t ever take it off. That’s not something the government gets to say.”
Among Alliance Defending Freedom’s conscience-rights cases was that of Cathy DeCarlo, formerly a nurse at New York’s Mount Sinai Hospital who was forced to participate in an abortion procedure despite her conscientious objection to it as a devout Catholic.
“I’ll never forget the day my supervisor ignored the law and forced me to participate in an abortion. I still have nightmares about that day,” DeCarlo said in a statement. “As an immigrant to America because of the freedom and opportunity I saw here, today I’m hopeful that HHS’ new rule will help make sure that no other nurses or health care professionals will be forced to go through what I did and that their rights will be protected.”
DeCarlo was turned away by the Obama administration’s Office for Civil Rights but ended up filing complaints against her supervisors through Alliance Defending Freedom, and Mount Sinai Hospital ultimately changed its policies.
Fe Vinoya is another ADF client who was threatened with the loss of her nursing job in New Jersey if she did not participate in abortion procedures. Vinoya and 11 of her colleagues were successful in negotiating a constructive settlement of their lawsuit, and their hospital agreed not to penalize them for refusing to participate in abortions.
“I never imagined my employer would force me to choose between taking the life of an unborn child and losing my job,” she said in a statement in reaction to the rule. “But 11 other nurses and I were ordered to assist in abortion even though it violated our religious convictions and contradicted our calling as a medical professional to protect life. Both New Jersey and federal law prohibited this discrimination. But those laws are only as effective as the willingness of government officials to enforce them.
Added Vinoya, “Today’s rule helps enforce the law just like any other civil-rights law and protect people like me who love serving our patients.”
Lauretta Brown is the Register’s Washington-based staff writer.