By CASEY HARPER
THE CENTER SQUARE SENIOR REPORTER
(The Center Square) — U.S. Health and Human Services has proposed a controversial rule change that would roll back Trump-era conscience protections for healthcare workers.
Congress already has laws on the books to “protect the rights of individuals, entities and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons.”
How HHS interprets and enforces that law, though, is up for debate.
The Trump administration rolled out a new HHS rule in 2019 to strengthen those protections and the enforcement of them.
Now the Biden administration is trying to roll back those changes. President Joe Biden’s HHS published the rule change in January, and public comment closed Monday.
HHS cited arguments by various critics of the rule, saying the 2019 rule would hinder “patients’ ability to access” abortions and said it was “overly expansive and incongruous with medical professionalism, among other concerns.”
Critics have pushed back, saying the Biden administration’s changes will expand abortion, make the law more vague, put more power in the hands of HHS and lead to discrimination against Americans.
On Monday, 26 members of Congress submitted a comment on the rule in a joint letter, saying the Biden administration’s proposed change “leaves gaps in the investigation and enforcement process, and ignores the balance Congress struck when it provided unqualified rights of conscience.”
“Instead of supporting proposed legislation like the Conscience Protection Act to allow victims of discrimination to also have their day in court, HHS is blocking possible legal remedy for victims of discrimination by dropping enforcement actions and clear mechanisms for investigation and enforcement, and making it harder for any further discrimination claims to be filed, investigated, and remedied,” the lawmakers wrote.
Conscience protections have been in the spotlight in recent years since COVID vaccine mandates left many workers, those in the healthcare industry in particular, forced to take the vaccine or risk losing their job.
With the overturning of Roe v. Wade, the abortion debate has also heightened the tension on the issue as healthcare workers unwilling to perform abortions have faced obstacles.
“The Proposed Rule claims that ‘our health care systems must effectively deliver services — including safe, legal abortions — to all who need them in order to protect patients’ health and dignity,'” the lawmakers wrote. “Leaving aside that the current Administration has focused immense attention on promoting and paying for abortion, including at times, in violation of federal and state law, such a claim will only lead to further diminution of conscience rights provided by Congress. It is unfortunate, but not surprising, that in the wake of the decision in Dobbs v. Jackson Women’s Health Organization, HHS has still prioritized abortion access over nearly anything else, including following and enforcing the law.”
The lawmakers called on HHS to strengthen, not weaken, its enforcement of conscience violations.
“The lack of enforcement is evidenced not only by the failure to investigate and prosecute conscience violations by HHS in the last several years, but also the decision by HHS to walk back enforcement actions initiated by the previous administration, as detailed below,” the comment said.
Critics said the rule change could leave countless Americans open to discrimination with little legal remedy.
“Without strong conscience protections, healthcare professionals across America risk discrimination for holding to their religious convictions,” said Justin Butterfield, deputy general counsel for the First Liberty Institute, which also officially commented on the rule. “The proposed HHS rules would eviscerate current protections that uphold the rights of healthcare professionals and the ethical integrity of the medical profession.”
Casey Harper works at The Center Square’s Washington, D.C., bureau.