Overview: HHS Protection of Conscience Regulation (2008-2011)
U.S. Department of Health and Human Services
Sean Murphy*
Summary
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)
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
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
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:
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:
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)
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:
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:
Notes
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.