Tipping the Balance: the Conscience Rule, Religious Freedom, and Health Care

By: Tim Sookram

On May 21, 2019, the U.S. Department of Health and Human Services’ Office of Civil Rights promulgated the final version of the “Conscience Rule,” a regulation aimed at protecting the rights of those who cite religious grounds in refusing to perform or assist with certain health care services. Opponents have decried the rule for its overbreadth and potential adverse impact on patients’ treatment. There is a balance between religious objections and professional obligations that raises complex issues in the context of providing health care.

The Conscience Rule on Paper

The Conscience Rule’s codified purpose is 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.” HHS says the rule “ensures that the government or government-funded entities are not unlawfully discriminating against individuals, health care providers, or health care entities.”

The rule finds its basis in 25 “conscience protection provisions” passed by Congress. These include the Church Amendments, the Coats-Snowe Amendment, the Weldon Amendment, and conscience protections in the Affordable Care Act on abortion and assisted suicide. The Church Amendments bar the federal government from withholding funding from medical providers who refuse to perform or assist in abortions or sterilization and protects those providers from retaliation by their employers. The Weldon Amendment and Coats-Snowe Amendment prevent state governments from imposing similar requirements on providers objecting to abortion.

The rule applies to federally-funded entities, federal agencies and programs, and state and local governments receiving federal funds. Nearly all hospitals in the United States accept some form of federal funding via programs like Medicare and Medicaid, along with the vast majority of practicing physicians. All 50 states receive federal funding to run their Medicaid programs, which is the largest source of federal revenue to state governments. Consequences to state and local governments who do not comply with the rule include denial of federal health, welfare and education funds.

Challenges to the Conscience Rule

The regulation has sparked four separate lawsuits against the Secretary of Health and Human Services, largely from state and county governments. The State of New York, along with 20 other states and the city of Chicago have sued in federal court in the Southern District of New York. The State of California filed a separate lawsuit in the Northern District of California, as did San Francisco (San Francisco v. Azar) and Santa Clara County, along with several medical associations. The rule’s effective date has been postponed pending the results of these cases.

Opponents challenging HHS’s rule argue it is overbroad and goes beyond the religious freedom statutes it interprets. They focus on the “assist in the performance of” language in the rule—particularly, its definition: “to take an action that has a specific, reasonable, and articulable connection to furthering a procedure . . .  undertaken by or with another person or activity.” Opponents argue that “an articulable connection” extends protections to auxiliary personnel such as the receptionist who checks a patient into the hospital or the person who takes a patient’s blood pressure.

Litigators in the San Francisco v. Azar case argue that the rule is outside the agency’s authority to promulgate because it is not limited to direct providers of care (such as doctors and nurses). Oral arguments on a Motion to Dismiss the complaint covered whether the rule would allow an ambulance driver to refuse emergency transport to a woman with an ectopic pregnancy going to a hospital for an emergency abortion. Lawyers for the federal government did not deny the hypothetical, responding only that violations of the Conscience Rule would be decided on a case-by-case basis.

Lawyers against the Conscience Rule further claimed that one provision would prevent clinics and hospitals from asking employees whether they had religious objections to the services they were hired to provide. The presiding judge in the San Francisco case commented, “If the job is to do abortions . . . I think they have to ask them that question.”

Other opponents are concerned that the rule is a backdoor to stigma and discrimination against LGBT individuals and those living with HIV/AIDS. They fear that a pharmacist or pharmacy clerk could refuse to dispense medication to HIV/AIDS patients or even those seeking pre-exposure prophylaxis drugs that can prevent reception of the virus through sex or injection. Opponents of the rule also argue that girls and women could be similarly affected by being denied birth control medication based on a provider’s religious objection.

Defenders of the Conscience Rule

Four non-profit religious groups have filed amicus briefs in these cases that defend the Conscience Rule. The groups state that protecting the religious consciences of a broad array of healthcare workers accords with historical protections under the First Amendment. They argue that “complicity in an act creates an unconstitutional conscience burden,” that providers have lost their jobs because of their commitment to their faith, and that “[c]onscience rights are not based on one’s professional status.” The groups argue that medical professionals must heal and “do no harm,” citing the Hippocratic Oath.

Roger Severino, head of the Office of Civil Rights at HHS, defends the regulation as an enforcement tool for longstanding religious freedom statutes. He goes on to argue that “[p]rotecting conscience and religious freedom fosters greater diversity in the healthcare space.” HHS justifies the rule by saying “healthcare professionals will not feel compelled to leave the practice of medicine because they decline to participate in actions that violate their conscience[.]”

Conclusion

There is a balance between an individual’s right to seek health care and a medical provider’s right to their own religious beliefs. While no one should be forced to provide care that they believe to be unconscionable, at this level of attenuation, extenuating circumstances may make their choice of profession untenable. Is a clerk “providing care” when they ring up a prescription? Will a business retain a pharmacist who cannot truly work a night shift alone? Is an ambulance driver owed discretion over whom they transport? Probably not. Yet for the sole rural obstetrician in the one-in-a-million midnight ectopic pregnancy, saying “No” may mean the end of two lives instead of one. “Do no harm” is not always so simple.