Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Overview: HHS Protection of Conscience Regulation (2008-2011)

U.S. Department of Health and Human Services

Sean Murphy*


In the fall of 2008, the U.S. Department of Health and Human Services under the outgoing Bush administration passed a regulation to safeguard freedom of conscience for healthcare workers.  The rule came into effect at the end of January, 2009, just before President Barack Obama took office.  President Obama's administration eviscerated and re-enacted the regulation in 2011 to remove the safeguards enacted under President Bush.

Bush Administration (2008-2009)
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 Department). The document was purported to be a briefing note and draft regulation being circulated in the Department. The stated purpose of the proposed regulation was "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."1
Proposed rule open for comment

On 21 August, 2008, the Department issued the final draft of the proposed regulation,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 ยง 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."2

OP ED & News Releases

The contents of the leaked document generated controversy even before the rule was published.  Groups advocating for protection of conscience issued news releases and wrote opinion columns and letters to the editor responding to critics of the proposed rule.  Some examples:

Extended comment and submissions

The Department stated that it received "a large volume" of comments but did not quantify them or break down the proportions for or against the rule.  They came from "a wide variety of individuals and organizations, including private citizens, individual and institutional health care providers, religious organizations, patient advocacy groups, professional organizations, universities and research institutions, consumer organizations, and State and federal agencies and representatives."3

The Protection of Conscience Project was one of many urging protection of health care practitioner freedom of conscience.4  Others expressing the same concern included:

Final rule enacted

In December, 2008 the Department issued the final rule in the Federal Register,5 explaining it within the context of the comments received.6 The rule took effect on the last day of the outgoing Bush administration in January, 2009.

Obama Administration (2009-2011)
Obama moves to revoke 2008/2009 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. The Department received over 300,000 comments on its proposal to revoke the Bush regulation, 187,000 of which (62%) were opposed to revocation.7  Among them:

New 2011 rule enacted

The new regulation was published in February, 2011, accompanied by a commentary by the Department that has been annotated by the Project. Critics responded in opinion columns, letters, news releases and other commentary.  Some examples:

OP ED, Letters & News Releases
Other comment


1.    Robert Pear, "Abortion Proposal Sets Condition on Aid", New York Times (15 July, 2008)

2.    US, Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law (2008) 73:166 Federal Register 50774-50285.

3.    "Comment by HHS on Final Rule (2008)" (3 June, 2024), Protection of Conscience Project (website) at II. Comments on the Proposed Rule.

4.   "Submission to Department of Health and Human Services (USA) Re: Draft Regulation: Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law" (24 September, 2008),  Protection of Conscience Project (website).

5.    US, Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law (2008) 73:245 Federal Register 78072-78101.

6.    "Commentary by U.S. Department of Health and Human Services" (3 June, 2024), Protection of Conscience Project (website).

7.    US, Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws (2011) 76:36 Federal Register 9968-9977.