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HHS Proposes Rule to Shore Up Conscience Protections

HHS Proposes Rule to Shore Up Conscience Protections

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WASHINGTON — The Department of Health and Human Services (HHS) announced a proposed regulation Friday aimed at protecting healthcare providers who decline to provide certain services or procedures based on religious or conscientious objections.

“The proposed regulation is directed at 25 statutory provisions dealing with conscience and religious freedom,” explained Roger Severino, director of the HHS Office for Civil Rights, on a conference call with reporters. “In previous years these statutes were not enforced at all … That will change with this proposed regulation.”

“We believe that healthcare practitioners have been coerced and discriminated against because of their religious beliefs and moral convictions … The proposed regulations will address these issues, [which] have been an impediment to diversity in healthcare” among providers in terms of their beliefs, Severino said.

Some of the laws currently on the books to protect providers’ religious beliefs include:

  • The Weldon amendment, which bars federal agencies from making grants to entities that discriminate against healthcare providers who don’t provide abortions
  • The Church amendment, which prohibits the federal government from discriminating in grants or loans on the basis of whether the entity is willing to perform sterilizations or abortions
  • The Coates/Snow amendment, which says the federal government and state governments can’t discriminate against entities that refuse to undergo training in how to perform abortions, or to provide such training

In addition, Section 1553 of the Affordable Care Act has similar protections for those who object to helping with an assisted suicide, he added.

Severino stressed that the new regulation “is not about denying anybody any healthcare to which they’re entitled; it’s about [providers’] ability to provide services in accordance with their religious beliefs and moral convictions. We can’t have a society where government decides how and when and to whom someone can provide healthcare.” On Thursday, HHS announced that Severino’s office was opening up a new “Conscience and Religious Freedom” division dedicated to allowing healthcare providers to act on their religious and moral beliefs when it comes to providing healthcare services.

The proposed rule “requires certain recipients of federal funds to certify to HHS they’re in compliance with federal conscience laws … to inform people of their rights and inform covered entities of their responsibilities,” he continued. It is also meant “to assure full compliance with laws that are under-enforced, and to [have entities] keep records to establish compliance and cooperate with the Office for Civil Rights (OCR) in enforcement activities. These entities also cannot retaliate against employees who file complaints with OCR.”

When asked whether the new regulation would apply to providers who refuse to provide specific services to transgender people, Severino said it wasn’t about denying services to specific groups of people. “Diversity is good; everyone should be treated with respect in healthcare,” he said. Severino added that the regulation and the laws it was enforcing are about “providers who choose not to provide or engage in certain procedures at all, and it’s focused generally on issues of abortion, end of life, or beginning of life.”

Similarly, he said, if the retailer Target chooses not to sell guns, “that doesn’t mean they’re denying anyone the right to own a gun,” which is guaranteed under the Second Amendment. Instead, the company is within its rights to decide what goods it wants to provide to customers.

However, when pressed further on whether healthcare providers would be able to opt out of providing transgender people with any healthcare services — such as treatment for the flu, for example — Severino demurred. “It’s difficult to deal with every hypothetical … We can’t prejudge any particular case that comes through,” he said, adding that, however, the proposed regulation “doesn’t mention LGBT issues at all; it speaks in general terms about conscience.”

When asked whether the new regulation would apply to pharmacists who refused to dispense birth control prescriptions, Severino said, “That’s a legal question that’s not appropriate to opine on now.” An HHS spokesperson asked MedPage Today to email the question for follow-up; the email was sent, but no response was forthcoming at presstime.

HHS also announced that it was rescinding a 2016 guidance from the Obama administration that restricts state Medicaid agencies’ ability to take action against family planning organizations, such as Planned Parenthood, that provide abortion services.

“The previous administration guidance narrowed the criteria states could consider in determining whether a provider should be able to participate in Medicaid, limiting states to things like fraud and criminal actions or ‘material issues concerning the fitness of providers to perform Medicaid services,'” said Charmaine Yoest, PhD, assistant secretary for public affairs at HHS, on the conference call. “The 2016 guidance undermines the ability of states to protect their Medicaid programs.”

Currently, several states have laws on the books banning Planned Parenthood from being reimbursed by Medicaid for any of their services, although some of those laws have been blocked by the courts. The withdrawal of the Obama administration letter “provides the possibility of states to engage in that [type of] consideration without putting a thumb on the scale,” said a senior HHS official.

The HHS announcements came on the same day as the annual March for Life rally conducted by anti-abortion activists. The rally is usually held on or close to Jan. 22nd, the date in 1973 on which the Supreme Court issued its Roe v. Wade decision legalizing abortion.


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