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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Regulation 45 CFR Part 88 (2008) [Rescinded]
U.S. Department of Health and Human Services

Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law

  • Note: This section of the site refers to a regulation issued in December, 2008 by the Bush Administration. It was eviscerated by the Obama Administration and re-issued in February, 2011. [See current regulation]


Draft rule leaked

On 15 July, 2008 the New York Times published a story based on a confidential document it had obtained from the U.S. Department of Health and Human Services. The document is purported to be a briefing note and draft regulation being circulated in the Department. The stated purpose of the proposed regulation is "to define key terms, and to ensure that recipients of Department funds know about their legal obligations" under federal protection of conscience laws. In particular:

  • the Conscience Clauses/Church Amendments prohibit entities that receive some grants, contracts, loans, or loan guarantees "from denying admission to, or otherwise discriminating against, "any applicant (including for internships and residencies) for training or study because of the applicant's reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant's religious beliefs or moral convictions;"
  • the Public Health Service Act "prohibits the Federal government and any State or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity refuses to: (1) receive training in abortion; (2) provide abortion training; (3) perform abortions; (4) provide referral for such abortions; or (5) provide referrals for abortion training."
  • the Weldon Amendment denies federal funds to federal agencies or programmes or State or local government that discriminate against institutional or individual health care entities because they do not "provide, pay for, provide coverage of, or refer for abortions."
Proposed rule open for comment

On 21 August, 2008, the Department issued the final draft of the proposed regulation, Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law, with a deadline of 25 September, 2008 for public comments. The stated goals of the regulation were:

(1) educate the public and health care providers on the obligations imposed, and protections afforded, by federal law;

(2) work with State and local governments and other recipients of funds from the Department to ensure compliance with the nondiscrimination requirements embodied in the Church Amendments, PHS Act § 245, and the Weldon Amendment;

(3) when such compliance efforts prove unsuccessful, enforce these nondiscrimination laws through the various Department mechanisms, to ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law; and

(4) otherwise take an active role in promoting open communication within the healthcare industry, and between providers and patients, fostering a more inclusive, tolerant environment in the health care industry than may currently exist."

Final rule enacted

In December, 2008 the Department responded to the comments received and issued the final rule in the Federal Register. The rule took effect on the last day of the outgoing Bush administration in January, 2009.

Obama moves to revoke rule

The incoming Obama administration was opposed to the regulation. In March, 2009 it announced its intention to revoke the rule and solicited comments on its plan for a 30 day period ending 9 April.

Materials posted

The materials posted in relation to this regulation are listed below. They include

  • comments about the leaked draft during the initial controversy in July;
  • submissions to the Department of Health and Human Services in response to the proposed and final rule;
  • submissions to the Department of Health and Human Services about revocation of the rule;
  • informal commentary, including news release and opinion and editorial columns.

OP ED & News Releases

2008-07-15 Christian Medical Association News Release

2008-07-15 Concerned Women for America News Release

2008-07-18 U.S. Conference of Catholic Bishops News Release

2008-09-02 Conscience and coercion (CMA Letter to the Editor)

2008-09-02 Abortion Article Was Incorrect (CMA Letter to the Editor)

2008-09-04 Moral Safeguards for Patients, Too (CMA Letter to the Editor)

2008-09-15 Re: "Leavitt should drop proposed health care rule." (CMA Letter to the Editor)

2008-09-16 Rules let care workers practice medical ethics (CMA Letter to the Editor)

2008-09-25 Proposed rule would protect doctors from discrimination

2008-11-13 Don't doctors deserve a choice on abortion?

2008-12-17 A matter of conscience

Extended comment and submissions
Institution of regulation

2008-07-15 Christian Medical Association

  • 2008-09-18 Christian Medical Association re: survey of public knowledge
  • 2008-09-19 Christian Medical Association re: methods of communication

2008-07-15 Letter from Justin Cardinal Rigali to Members of U.S. Congress

2008-08-26 Comment on HHS Regulation 45 CFR Part 88

  • Family Research Council
  •  Concerned Women for America
  • Association of American Physicians and Surgeons, Inc.
  •  American Association of Pro-Life Obstetricians and Gynecologists
  •  Christian Pharmacist Fellowship International
  •  Safe Drugs for Women

2008-09-12 United States Conference of Catholic Bishops

2008-09-16 Alliance Catholic Health Care

2008-09-24 Protection of Conscience Project Submission

2008-09-24 Catholic Health Association of the United States

2008-12-19 Commentary by U.S. Department of Health and Human Services

Revocation of regulation

2009-03-24 Letter from National Catholic Partnership on Disability

2009-03-24 Should the Obama Conscience Rules Seek to Protect Persons or Provide Benefits?

2009-04-09 Christian Medical Association re: Data and analysis of two national surveys on conscience rights

2009-04-29 Michigan Senate Resolution No. 43.

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