HHS Issues Final Rule on Healthcare Conscience Protections

HHS Issues Final Rule on Healthcare Conscience Protections

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) released its Final Rule on Healthcare Conscience Protections titled as “Safeguarding the Rights of Conscience as Protected by Federal Statutes”.[1] The official notification was made on January 11, 2024.[2] The rules will come in effect from March 11, 2024.[3] This rule aims at strengthening the process of protections and enforcement procedures for the protection of health practitioners being discriminated on their decision of engaging in restraining themselves from procedures guided by their conscience.

In 2008, the HHS tried to make rules for the first attempt at providing these safeguards. In December 2008, HHS issued Final Rule in compliance with conscience clauses that was first enacted in the early 1970s. The 2008 Final Rule came into effect on January 20, 2009 providing protection to medical providers and/or medical institutions who refuse to be a part of a medical procedure based on their beliefs or alliances. In February 2011, this Final Rule was partially revoked for the reason that its interpretation may limit the access of health care services by the patients who need them.[4]

After 2011, the Final Rule was again amended in 2018 and was adopted in 2019 but it faced challenges all across the United States. In New York v. U.S. Dep’t of Health & Human Servs., 414 F. Supp. 3d 475 (S.D.N.Y. 2019), the United States District Court of Southern District of New York vacated the rule stating that the Rule did not have the authority to create the rights and obligations it has created. But the Court also admitted that the Rule does provide important rights and suggested that if the HHH wanted to publish the rights, they would have to do it in the purview of the Administrative Procedure Act (APA).

The process to establish such safeguards has been going on for a long time now. In 1973, followed by Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973),theChurch Amendments were enacted which prohibited any court or any public official or other public authority from making it necessary for the funded medical institutes or their employees to engage in medical practices which are contrary to their beliefs.

The Coats-Snowe Amendments provides the same protections as theChurch Amendments and it also provides protection against refusing to refer the patient to some other medical entity or person who provides such medical services.

The 2024 Final Rule provides the protections granted and provided under the Church Amendments and the Coats-Snowe Amendments. It allows anyone whose rights have been violated per this rule to make a complaint to the OCR. It further enables the OCR to start the compliance proceedings, investigations, withhold grants and contracts against the entity/person, against whom a complaint has been received until such complaints are resolved.

The HHS has framed a model notice in Appendix A of the Final Rule which states as follows:

“You may have rights as a provider, patient, or other individual under these Federal statutes, which prohibit coercion or other discrimination on the basis of conscience, whether based on religious beliefs or moral convictions, in certain circumstances.”

HHS also directs the entities and persons to whom the Final Rule 2024 applies, to publish the notice on their website, manuals and training material in order to achieve its effective compliance.

Although, for the time being, the Final Rule 2024 provided protection to medical organisations, entities and/or personnel to engage in medical practices such as abortion and any other medical service which is contrary to their religious beliefs and morals, but it leaves space for a continuous debate about to what extent these protections can be allowed. We need to identify the situations where life of a living being trumps someone’s religious beliefs and need to find a middle ground where such situations can be dealt with in a way that patients’ health and life are not put on risk at the expense of medical practitioners’ freedom to follow their beliefs.

[1] See Notice of proposed rulemaking (NPRM) at: https://www.federalregister.gov/documents/2023/01/05/2022-28505/safeguarding-the-rights-of-conscience-as-protected-by-federal-statutes

[2] See Final rule at: https://www.federalregister.gov/documents/2024/01/11/2024-00091/safeguarding-the-rights-of-conscience-as-protected-by-federal-statutes

[3] Id.

[4] See CRS report, Health Care Providers’ Religious Objections to Medical Treatment: Legal Issues Related to Religious Discrimination in Employment and Conscience Clause Provisions, July 18, 2011 at: https://www.everycrsreport.com/reports/R40722.html