By Stanley Carlson-Thies

On January 18, 2018, the U.S. Department of Health and Human Services (HHS) announced the creation of a new division in its Office of Civil Rights (OCR), charged with monitoring and enforcing compliance with the protections for conscience and religious conviction that exist in many federal health laws. OCR already had a division charged with implementing other civil rights protections and one enforcing health information privacy rules. HHS has also issued for public comment a regulation to clarify the scope of the statutory conscience and religion protections and to describe how it intends to publicize and enforce these protections with the same intensity and vigor that it promotes compliance with other nondiscrimination laws and with privacy protections.

The new Conscience and Religious Freedom division, besides conducting its own monitoring for compliance with statutory protections, will accept complaints from persons and institutions that allege a violation of a legally protected right not to be forced against conscience or religious conviction to participate in elective abortions, sterilization, assisted suicide, and some other medical procedures. Many of these rights protect individuals (including, in some circumstances, pro-abortion doctors); others protect medical institutions—hospitals, medical clinics, health insurers, health teaching institutions. What is protected is a refusal to participate in certain medical procedures, not a refusal to serve a patient because of the identity or status of that patient.

Congress began writing such protections into health laws almost immediately after the US Supreme Court’s Roe v. Wade decision (1973). Some of the protections have been adopted annually as part of the appropriations process, including when Democrats have held majorities in Congress. Some of the protections are part of the Affordable Care Act. These laws specifically protect conscience, which could be secular, as well as religious convictions. In some cases, the objectors need give no reason at all. What’s been missing is vigorous enforcement—one reason, the draft new regulation suggests, that OCR in the past received few complaints, even though pressure to be complicit in abortions is a common worry of pro-life nurses, doctors, and medical students.

The George W. Bush administration, in its final year, promulgated a conscience-protection regulation, but this was rescinded and then, in weaker form, re-adopted by the Obama administration. One problem with both regulations that the proposed new regulation is intended to redress is that they did not cover the entire extent of conscience protections that exist in federal law.

The new division and the proposed new regulation are responses by HHS to President Trump’s May 2017Executive Order committing the administration to vigorously protecting free speech and religious freedom, and to Attorney General Sessions’ October 2017 Department of Justicememorandumsetting out the federal government’s religious freedom obligations.

Critics, in addition to suspicion of the intentions and commitments of the Trump presidency, havechallenged the protection of exercises of conscience and religious conviction by health care institutions. How can organizational structures and buildings have a conscience? And how can it be acceptable that an alleged conscience right of an institution might override the interests of a patient who seeks some procedure that the institution objects to? But protection of an institutional right is simply protection of the distinctive mission and values to which some specific institution is committed—that is, the mission and values of those who created and who sustain that specific institution. And without such protection, there could be no diversity of values among health care institutions, and without diverse institutions, the diverse universe of patients and medical staff could hardly be as well served.

Other critics are concerned by what they regard as an inflation of religious freedom to the detriment of patients, doctors, and nurses who do not subscribe to conservative convictions about human sexuality. There is particular concern about transgender patients, given the Trump administration’s pullback of federal rules and guidance that it alleges overstepped the government’s legal authority.

The Office of Civil Rights, which claims that it will vigorously fulfill its mandate to enforce a range of civil rights, and not just conscience and religious rights, has not stated how it will act when different rights intersect—e.g., the rights of a patient with those of a hospital, those of a patient seeking an elective abortion with those of a doctor who cannot in good conscience perform or refer for abortions. The draft regulation does not discuss these important decisions.

However such decisions are made, the new HHS initiatives—the new enforcement division in OCS and the draft new regulation–create no new religious rights. The new enforcement division only implements with vigor rights that Congress has regarded as so important as to regularly adopt when it legislates in the area of health care.