The Biden administration is proposing to weaken the regulations on how the federal government enforces conscience protections in health care, such as those in the Church Amendments and the Weldon Amendment. Congress enacted these and other protections that prohibit hospitals, state and local government agencies, teaching hospitals, and other health entities receiving federal funding from requiring their health staff and organizations to perform or facilitate abortions and other procedures against their conscience. The Notice of Proposed Rulemaking was published on January 5, 2023. The deadline for submitting comments is March 6, 2023. You can submit a comment via www.regulations.gov (search for “Conscience Recission NPRM”).
The Bush administration, in its final days, adopted regulations that directed the Office of Civil Rights (OCR) in the Department of Health and Human Services (HHS) to monitor whether various conscience protections were being respected and to respond if not. The Obama administration weakened the regulations–retaining a requirement for OCR to accept complaints about violations of conscience but without the requirement to enforce the protections.
The Trump administration extensively modified the regulations in order to add administrative power to the legislated protections. It added to the monitoring and enforcement list the many additional conscience protections that Congress has adopted, specified that entities receiving covered federal funds should certify that they would respect the protections, and detailed various ways that the federal government should enforce the protections, among other changes. As soon as these changes were announced, a number of lawsuits challenged the pending regulations and the federal courts ruled that the regulations could not be put into effect.
Rather than seek to repair the strong Trump regulations stopped by the courts, the Biden administration is proposing mainly to modify the weak Obama regulations that have remained in effect, although the draft Biden regulations do adopt some Trump proposals. Most important: the expansion of coverage to the whole range of legislated protections would be retained, and some Trump proposals to promote compliance would be kept.
The Biden NPRM is notable, however, in minimizing forceful enforcement of the legislative protections and by proposing that federal efforts to protect conscience have to be balanced by protections for abortion access and LGBTQ rights. Congress bears blame by not specifying strong enforcement powers for HHS, and yet Trump officials would argue that the Biden administration is not committed to doing all that is possible in the absence of stronger congressional directives. As to balancing rights: that is not what Congress specified in its multiple conscience protections. Rather, the conscience claims of doctors, nurses, medical students, hospitals, and other health care facilities are to be fully honored—with the rights of patients seeking abortions, sterilization, gender transition procedures, or other services protected via the diversity of medical facilities and medical staff in our society.
Stanley Carlson-Thies is the founder and senior director of the Institutional Religious Freedom Alliance (IRFA), a program of the Center for Public Justice.
