Biden HHS rescinds Trump conscience protections for healthcare workers

By Ryan Foley, Christian Post Reporter Wednesday, January 10, 2024

The U.S. Department of Health and Human Services building is shown August 16, 2006, in Washington, D.C. The HHS building, also known as the Hubert H. Humphrey building, is located at the foot of Capitol Hill and is named for Humphrey, who served as a U.S. senator from Minnesota and vice president of the United States. | Mark Wilson/Getty Images

The Biden administration has issued a new proposal seeking to amend conscience protections for healthcare workers and institutions that wish to refrain from performing abortions and other procedures that violate their religious beliefs, drawing concerns from pro-life activists.

In a final rule slated for publication in the Federal Register Thursday, the U.S. Department of Health and Human Services announced its intention to partially rescind a rule implemented by the Trump administration in 2019.

The rule, due to take effect 60 days later, amends the 2019 rule and returns federal policy to "the framework created by the February 23, 2011, final rule entitled, 'Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws.'"

The 2019 rule, titled "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority," contained several provisions outlining explicit protections enabling "individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons."

The rule was blocked by federal courts and was never able to go into effect.

The Biden administration's proposal eliminates several provisions outlining protections for individuals and healthcare facilities that receive federal grants, contracts or loans. Specific declarations include protections stating that federal law shall not require individuals "to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions."

Protections also prohibit mandating that recipients of federal funds make their "facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the recipient on the basis of religious beliefs or moral convictions" and "provide personnel" for the provisions of said procedures. The 2019 rule also forbids discrimination in employment against people who refuse to participate in abortions or sterilizations.

Part of the rule remains in place, including a section proclaiming that certain federal statutes "protect the rights of individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons." The provision also maintains that "such laws also protect patients from being subjected to certain health care or services over their conscientious objection."

The department's proposal comes a year after it attempted to amend the 2019 rule in a proposed rule titled "Safeguarding the Rights of Conscience as Protected by Statutes." As noted by the pro-life advocacy group CatholicVote, the proposal would have had the effect of returning federal policy to the way it was in 2011.

More than 9,600 people submitted letters to the Biden administration against the proposal in response to a campaign started by CatholicVote warning that changes to the 2019 rule would revoke the moral exemption for employers who did not want to pay for abortifacients in their employer-sponsored healthcare plans. The proposed rule did not go into effect.

Pro-life groups offered differing reactions to the latest proposed rule. Carol Tobias, president of the National Right to Life Committee, addressed the new rule in a statement published Tuesday.

"President Biden is once again showing his allegiance to pro-abortion groups and their demands," she said.

"His administration is willing to trample on the rights of millions of healthcare workers by changing a rule designed to protect them from having to perform abortions against their religious or ethical convictions," Tobias added. She said, "This administration has been more than willing to comply with the demands of pro-abortion groups and their allies."

Tom McClusky, CatholicVote's director of government affairs, suggested in a statement that the final rule imposed by HHS "could have been much worse."

"The onslaught of public protest prevented HHS from sending us back to 2011," McClusky said. "But the rule definitely leaves Americans at the mercy of [HHS Secretary] Becerra's whims — and whether he feels that the protections we do have are even worth enforcing."

McClusky implied that Becerra's "whims" so far indicate that he is not likely to protect religious freedom and freedom of conscience. "Becerra's name is also on cases like Texas v. Becerra, where HHS is trying — and so far failing — to force emergency room doctors to perform elective abortions," he warned.

"On the one hand, we get these vague protections from HHS, while at the same time we see the administration taking the issue all the way to the Supreme Court to use [the Emergency Medical Treatment and Labor Act] to promote their radical abortion agenda."

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com