HHS announces final conscience protection rule, repealing some Trump administration provisions

The U.S. Department of Health and Human Services (HHS) announced a final rule governing the Biden administration’s interpretation and enforcement of laws protecting health care providers that object on religious or moral grounds from providing certain services. The move revises sweeping changes put forth by the Trump administration in 2019, including repealing certain provisions that courts had ruled unlawful. The 2019 rules, which never took effect due to legal challenges, would have greatly expanded the rights of providers to deny health services.

Entitled Safeguarding the Rights of Conscience as Protected by Federal Statutes, the Biden rule seeks to balance the rights of objecting service providers with the rights of patients to access the care they need. The rule retains the structure of the 2011 conscience protections implemented by the Obama administration, which “handled conscience matters on a case-by-case basis,” while incorporating some elements of the 2019 Rules.

According to HHS’ Fact Sheet, the Final Rule:

• Clarifies that the Office for Civil Rights (OCR) is designated to handle conscience complaints
• Restores OCR’s enforcement process, including the authority to investigate complaints, enforce regulations, and make referrals to the Justice Department when appropriate
• Encourages entities to post a notice to inform providers and patients of their rights under federal conscience statutes

HHS issued a press release announcing the Final Rule:

“Protecting conscience rights and ensuring access to health care are critically important, no matter who you are, where you live, who you love, or your faith and conscience. Our office has statutory mandates to protect people across the country and takes this responsibility very seriously,” said Office for Civil Rights Director Melanie Fontes Rainer. “We are proud of today’s rule, which advances conscience protections, access to health care, and puts our health care system on notice that we will enforce the law. As a law enforcement agency, we are committed to this work.”

The ACLU praised the move, calling the Trump-era rules repealed by the Biden administration “dangerous and unnecessary.” ADF criticized the Biden rule as “misguided,” claiming that “countless medical practitioners” are forced to violate their religious beliefs under the current enforcement regime that has been in place since 2011.

In invalidating the 2019 rules, however, a federal district court in New York called the Trump administration’s claim justifying the rules that there had been a “significant increase” in conscience protection complaints “factually untrue.”

The Final Rule is set to go in effect on March 11, 2024.