HHS issues proposed rule on religious nondiscrimination to partially rescind Trump-era rule
The proposed rule would restore the longstanding process for the handling of conscience complaints, HHS says.
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The Department of Health and Human Services Office for Civil Rights has announced a proposed rule, titled "Safeguarding the Rights of Conscience as Protected by Federal Statutes."
HHS said the rule proposes to restore the longstanding process for the handling of conscience complaints and provide additional safeguards to protect against conscience and religious discrimination.
WHY THIS MATTERS
The proposed rule answers a 2019 final rule under the Trump Administration that was held unlawful by three federal district courts.
In 2019, OCR issued a regulation that provided broad definitions, created new compliance regulations and created a new enforcement mechanism for a number of statutes related to the conscience rights of certain federally funded healthcare entities and providers.
The 2019 HHS rule allowed an expansion of religious liberty that curtailed reproductive rights, according to the American Bar Association. It allowed virtually anyone who asserted an objection based on religious or moral beliefs in a healthcare employment setting to claim they had faced discrimination for refusing to assist with services including abortion, the ABA said. It also vastly expanded the individuals and entities who could claim a religious or moral exemption and the types of actions considered discrimination.
Several federal district courts blocked the rule in response to challenges filed across the country. The Biden Administration has declined to enforce it, the ABA said.
The proposed rule would partially rescind the department's 2019 rule while reinforcing other processes previously in place for the handling of conscience and religious freedom complaints.
Public comments are due 60 days after the publication of the Notice of Proposed Rulemaking in the Federal Register.
THE LARGER TREND
In early December, a federal appeals court rolled back a Biden administration proposed rule on sex discrimination in a ruling blocking a transgender care mandate.
The United States Court of Appeals for the Eighth Circuit upheld a North Dakota district court opinion in ruling in favor of Catholic health systems and associations, and the Religious Sisters of Mercy. The appeals court said the implementation of Section 1557 of the Affordable Care Act prohibiting certain forms of discrimination in healthcare compels providers to perform and provide insurance coverage for gender transition, which infringes upon religious freedom.
ON THE RECORD
"No one should be discriminated against because of their religious or moral beliefs, especially when they are seeking or providing care," said HHS Secretary Xavier Becerra. "The proposed rule strengthens protections for people with religious or moral objections while also ensuring access to care for all in keeping with the law."
"Protecting conscience rights and enforcing the law to combat religious discrimination is critical," Office for Civil Rights Director Melanie Fontes Rainer said. "Today's proposed rule would strengthen these protections and reinforce our long-standing process for handling such conscience and faith-based objections. It also would take steps to help ensure that individuals are aware of their rights."
Twitter: @SusanJMorse
Email the writer: SMorse@himss.org
