By: Tim Sookram<\/p>\n\n\n\n
On May 21, 2019, the U.S. Department of Health and Human Services\u2019 Office of Civil Rights promulgated the final version of the \u201cConscience Rule,\u201d<\/a> 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\u2019 treatment. There is a balance between religious objections and professional obligations that raises complex issues in the context of providing health care.<\/p>\n\n\n\n The Conscience Rule\u2019s codified purpose<\/a> is to \u201cprotect 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.\u201d HHS says<\/a> the rule \u201censures that the government or government-funded entities are not unlawfully discriminating against individuals, health care providers, or health care entities.\u201d<\/p>\n\n\n\n The rule finds its basis in 25 \u201cconscience protection provisions\u201d passed by Congress. These include the Church Amendments, the Coats-Snowe Amendment, the Weldon Amendment<\/a>, and conscience protections in the Affordable Care Act on abortion and assisted suicide. The Church Amendments<\/a> 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<\/a> prevent state governments from imposing similar requirements on providers objecting to abortion.<\/p>\n\n\n\n The rule applies to<\/a> federally-funded entities, federal agencies and programs, and state and local governments receiving federal funds. Nearly all hospitals<\/a> in the United States accept some form of federal funding via programs like Medicare and Medicaid, along with the vast majority<\/a> of practicing physicians<\/a>. All 50 states receive federal funding<\/a> 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<\/a>.<\/p>\n\n\n\n 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<\/a> 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<\/em><\/a>) and Santa Clara County, along with several medical associations. The rule\u2019s effective date has been postponed<\/a> pending the results of these cases.<\/p>\n\n\n\n Opponents challenging HHS\u2019s rule argue it is overbroad and goes beyond<\/a> the religious freedom statutes it interprets. They focus on the \u201cassist in the performance of\u201d language in the rule<\/a>\u2014particularly, its definition: \u201cto take an action that has a specific, reasonable, and articulable connection to furthering a procedure . . . undertaken by or with another person or activity.\u201d Opponents argue that \u201can articulable connection\u201d extends protections to auxiliary personnel such as the receptionist<\/a> who checks a patient into the hospital or the person who takes a patient\u2019s blood pressure.<\/p>\n\n\n\n Litigators in the San Francisco v. Azar<\/em> case argue that the rule is outside the agency\u2019s authority to promulgate<\/a> 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<\/a> 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.<\/p>\n\n\n\n Lawyers against the Conscience Rule further claimed that one provision would prevent clinics and hospitals from asking employees whether they had religious objections<\/a> to the services they were hired to provide. The presiding judge in the San Francisco<\/em> case commented, \u201cIf the job is to do abortions . . . I think they have to ask them that question.\u201d<\/p>\n\n\n\n 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<\/a> or even those seeking pre-exposure prophylaxis<\/a> 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\u2019s religious objection.<\/p>\n\n\n\n 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<\/a> of a broad array of healthcare workers accords with historical protections under the First Amendment. They argue that \u201ccomplicity in an act creates an unconstitutional conscience burden,\u201d that providers have lost their jobs because of their commitment to their faith, and that \u201c[c]onscience rights are not based on one\u2019s professional status.\u201d The groups argue that medical professionals must heal and \u201cdo no harm,\u201d citing the Hippocratic Oath.<\/p>\n\n\n\n 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 \u201c[p]rotecting conscience and religious freedom fosters greater diversity in the healthcare space.\u201d HHS justifies the rule<\/a> by saying \u201chealthcare professionals will not feel compelled to leave the practice of medicine because they decline to participate in actions that violate their conscience[.]\u201d<\/p>\n\n\n\n There is a balance between an individual\u2019s right to seek health care and a medical provider\u2019s 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 \u201cproviding care\u201d 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 \u201cNo\u201d may mean the end of two lives instead of one. \u201cDo no harm\u201d is not always so simple.<\/p>\n","protected":false},"excerpt":{"rendered":" By: Tim Sookram On May 21, 2019, the U.S. Department of Health and Human Services\u2019 Office of Civil Rights promulgated the final version of the \u201cConscience Rule,\u201d 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 …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2790,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[73,178,291],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2788"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2788"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2788\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2790"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2788"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2788"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2788"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}The Conscience Rule on Paper<\/h4>\n\n\n\n
Challenges to the Conscience Rule<\/h4>\n\n\n\n
Defenders of the Conscience Rule<\/h4>\n\n\n\n
Conclusion<\/h4>\n\n\n\n