Obama Administration Alters Conscience Protections for Health Care Workers

The Obama administration last week rescinded a portion of a Bush-era federal regulation intended to protect health workers who refuse to provide care they find objectionable on moral or religious grounds.

While reaffirming that the new rule does not alter federal health care provider conscience protection statutes as they pertain to abortions and sterilization procedures, the proposed revised language calls for a much narrower version of the original statute that “was widely interpreted as allowing such workers to opt out of a broad range of medical services, such as providing the emergency contraceptive Plan B, treating gay men and lesbians and prescribing birth control to single women,” according to an article in the Washington Post.

The Post article noted that the original, broader statute enacted under President Bush had been sought by conservative groups concerned that workers “were increasingly being fired, disciplined or penalized in other ways for trying to exercise their ‘right of conscience.’” Opponents of the rule, including “Women's health advocates, family-planning proponents, abortion rights activists and others,” according to the Post, claimed that the rule “created a major obstacle to providing many health services, including abortion, access to the emergency contraception Plan B, birth control pills and other forms of family planning, as well as infertility treatment and possibly a wide range of scientific research.” Advocates for end-of-life care also said it could “enable doctors, nurses and others to refuse to honor patients' wishes.”

According to this article from the Society for Human Resource Management, “courts and enforcement agencies have interpreted that the [old] regulation offers protections to health care workers who refuse to participate in or offer health care services such as filling prescriptions for birth control pills, caring for homosexuals with AIDS and performing in-vitro fertilization for single women. Since the rule took effect, several high-profile cases, such as a pharmacist in California refusing to fill prescriptions for an emergency contraceptive and an ambulance driver in Chicago refusing to transport a woman who needed an abortion, have made headlines.”

The summary of the revised rule states that “The Department of Health and Human Services issues this Final Rule which provides that enforcement of the federal statutory health care provider conscience protections will be handled by the Department’s Office for Civil Rights, in conjunction with the Department’s funding components. This Final Rule rescinds, in part, and revises, the December 19, 2008 Final Rule entitled “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law” (the “2008 Final Rule”). Neither the 2008 final rule, nor this Final Rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment. These federal statutory health care provider conscience protections remain in effect.”

According to HHS, the new rule “rescinds those parts of the 2008 Final Rule that were unclear and potentially overbroad in scope.” Noting that the current conscience provisions (known as the “Church Amendments”) were enacted “at various times during the 1970s to make clear that receipt of federal funds did not require the recipients of such funds to perform abortions or sterilizations,” the proposed text of the new rule retains only those protections for physicians and other health care professionals who object to performing abortions or sterilizations.

The US Department of Health and Human Services issued a statement on the regulation for the enforcement of federal health care conscience protections:

The administration strongly supports provider conscience laws that protect and support the rights of health care providers, and also recognizes and supports the rights of patients. Strong conscience laws make it clear that health care providers cannot be compelled to perform or assist in an abortion. Many of these strong conscience laws have been in existence for more than 30 years. The rule being issued today builds on these laws by providing a clear enforcement process.

To underscore its support, HHS is beginning a new awareness initiative for our grantees through the HHS Office for Civil Rights, to ensure they understand the statutory conscience protections, and the enforcement process for those who believe their rights have been violated.

The final conscience protection rule being issued today by HHS reaffirms the Department’s commitment to longstanding federal conscience statutes by maintaining and building upon provisions of the Bush administration rule that established an enforcement process for federal conscience laws, while rescinding the definitions and terms of the previous rule that caused confusion and could be taken as overly broad.

Several groups have criticized the changes to the existing rule, including the Christian Medical Association (CAM), which issued a statement claiming that “The administration has made changes in a vital civil rights regulation without evidence or justification. The administration presented no evidence of any problems in healthcare access, prescriptions or procedures that have occurred in the two years since the original regulation's enactment that would justify any change in this protective regulation… The Obama administration's regulatory action… diminishes the civil rights that protect conscientious physicians and other healthcare professionals against discrimination. Any weakening of protections against discrimination against life-affirming healthcare professionals ultimately threatens to severely worsen patient access to health care.”

HCPLive wants to know:

Are you in favor of the changes to the federal health care provider conscience protection statutes?Are you concerned that the revised rule, despite assurances and language to the contrary, will weaken federal conscience laws and protections for health care workers?

Have you ever refused to perform a procedure or provide medical care or service on moral or religious grounds? If so, were there any professional or legal repercussions?

Do you have any knowledge of a physician or other health care worker being fired, disciplined, or otherwise penalized for refusing on religious or moral grounds to provide a medical service?

In your view, did the previous regulation potentially unfairly restrict access to reproductive health services and information for medically underserved populations? Do you agree with the CMA's claim that the changes to the rule will worsen access to patient care?

Do the current or proposed rules offer a clear process for enforcement of the health care provider conscience protection statutes? If you felt that your rights as a health care worker had been violated, do you know how to go about seeking enforcement of those rights?

Leave a comment below!