The new HHS conscience rule: What it means to physicians and patients

The U.S. Department of Health and Human Services (HHS) has issued a final rule that implements 25 federal conscience laws and strongly protects the exercise of conscience freedom by health professionals and health entities in HHS funded programs.  HHS had issued a proposed conscience rule in January 2018 and finalized the rule May 2 after reviewing some 242,000 public comments, including from the Christian Medical Association (CMA) and Freedom2Care, which strongly support the rule.

In a news release lauding the new rule, CMA CEO Dr. David Stevens said, 

"Our patients need to know that we as doctors can be trusted to conscientiously adhere to objective ethical standards and moral commitments that serve to protect them. They need to know we are not going to lay aside longstanding ethical norms and medical concerns just because ideologically-driven politicians or bureaucrats or hospital administrators might pressure us to do so by threatening our ability to practice medicine."

CMA Executive Vice President Dr. Mike Chupp observed, 

"Without conscience freedom in healthcare, whatever ideology the government chooses will be the grounds used to exclude all objectors. The result would be a loss of healthcare access for patients, and especially the patients of faith-based health professionals who often minister to the underserved and marginalized."

"Healthcare professionals won’t be bullied out of health care"

In announcing the rule, HHS Office of Civil Rights Director Roger Severino declared, 

"This rule ensures that healthcare entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare; it’s the law."

As explained in an HHS fact sheet, where certain federal funds are involved the rules protect:

·       Health care entities and employees who have conscience or religious objections related to performing, paying for, referring for, providing coverage of, or providing certain services, such as abortion, sterilization, or assisted suicide, or providing or receiving training in abortion.

·       Health care professionals who decline to receive training in abortions or who attend medical schools that don’t require abortion training, and applicants for training or study who have conscience or religious beliefs relating to assisting or recommending abortions or sterilizations.

·       Individuals in a health service or research activity funded by an HHS program, where they decline to perform or assist in part of that program because of sincere religious beliefs or moral convictions.

·       Patients who object to certain procedures, including screenings and mental health treatment of children or occupational illness testing, and in other specific instances set forth by Congress.

HHS cites CMA / Freedom2Care polling

HHS's explanation of the new rule eight times cited national polling commissioned by CMA and Freedom2Care, which showed that  87% of American adults surveyed believed it is important to “make sure that healthcare professionals in America are not forced to participate in procedures and practices to which they have moral objections.”

The polling also revealed that 91% of faith-based physicians declared that they would "rather stop practicing medicine altogether than be forced to violate my conscience." That key figure demonstrates the potential impact that a loss of conscience protections could have on healthcare access for patients--especially the poor and those in underserved areas and populations often served by faith-based professionals and institutions.

A Politico article on the new rule noted regarding the CMA and Freedom2Care polling, "No other surveys are cited more frequently — and no other data is more central to the Trump administration’s arguments. The Trump administration also uses the survey data to argue that health workers will quit or medical students will refuse to enter the field without its new rules." CMA and Freedom2Care plan to update the polling with a new survey this year.

While Politico and abortion advocates who oppose the rule made much of HHS's use of our polling, the rule does not, in fact, rest on polling but on 25 federal laws protecting conscience freedom in healthcare. An agency rule simply enforces the law by detailing its application in the real world and, in many cases, by providing recourse for individuals and entities victimized by abuses of the law.

Discrimination victims gain a friend at HHS

The previous administration in 2009 gutted the first HHS conscience rule promulgated in 2008 and at times appeared determined to suppress conscience freedom--to the point of attempting to force nuns to participate in its contraceptives mandate.

With the new administration, however, "OCR [HHS Office of Civil Rights] is now reporting a rise in civil rights complaints related to a person’s moral beliefs, with 343 complaints in fiscal year 2018 compared to just 10 similar complaints throughout the entire eight years of the Obama administration," reports Roll Call.

The article continues:

"OCR says it received 1,333 complaints in fiscal 2018 alleging either religious or moral conscience discrimination. The number of religious complaints during the Obama administration wasn’t available, but conscience complaints averaged just 1.25 per year during the previous administration."
"The word has gotten out that we’re open for business and we are going to take the laws that we enforce seriously," said Severino. "There’s a real issue out here where people feel their rights have been violated and that they need redress and I think that explains the big growth in the number of complaints. It’s been long overdue that they need attention."

Abortion advocacy groups already have filed lawsuits to stop the new rule. CMA will look for opportunities to counter those lawsuits and defend the new rule on behalf of our members who depend on conscience protections to engage in medical practice.

To learn how to file a complaint with HHS, to relate your own experience of discrimination or to read stories of others who've experienced discrimination, visit the Stories page on our Freedom2Care website. To learn more about federal laws, the new HHS rule and court cases visit the Laws, Regs and Cases page.