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HHS releases new rule on health workers’ religious, moral objections

People Thousands of people gather Friday on the National Mall for abortion opponents' annual March for Life. (Photo by Salwan Georges/The Washington Post)

This post has been updated.

Citing President Trump's “pro-life mission,” the Health and Human Services Department announced actions on Friday that are designed to roll back key health-care policies of the Obama administration.

Roger Severino, director for the HHS Office of Civil Rights, said a proposed rule on “conscience rights” will further protect health-care workers who think they are being punished or discriminated against because of their moral or religious beliefs.

belSpeaking as thousands of abortion opponents gathered on the Mall for the annual March for Life, Severino told reporters that the division's focus would be on “actions,” as in types of medical procedures, rather than groups of people. He drew parallels with Target refusing to sell guns. “This is not about denying anyone health care,” he said during a conference call.

The rule follows the department's announcement on Thursday that it was creating a new civil rights division to review complaints from doctors, nurses and others under 25 existing statutes, most of which allow workers to opt out of procedures like abortion, assisted suicide and sterilization.

The document released describes an approach to conscience and religious protections that is significantly broader than current regulations. The number of entities that would be covered by the new rule is massive — as many as 745,000 hospitals, dentists' offices, pharmacies, ambulance services and others — and the steps any entity must take to show it is in compliance is increased.

It also adds a definition of discrimination, which did not exist under a 2008 rule, and lays out how this could provide the federal government with grounds to challenge a state's enforcement of its own laws, such as a statute requiring abortion insurance coverage.

Under that rule of the George W. Bush administration, which was rescinded and replaced by the Obama administration in 2011, covered institutions or groups could continue to receive federal funding by signing a certification that they were aware of existing legal protections. The new regulation would incorporate elements of the older rule but also would go further and require entities to post notices of the protections. Officials say they expect them to ensure that organization-wide safeguards are in place, update policies as needed and implement staff training.

The draft language notes that the Office of Civil Rights could initiate a compliance review of organizations that get federal funding and  look at whether the notice is in personnel manuals and employment applications, among other details.

HHS estimates that implementing the new rule would cost $312.3 million in the first year and $125.5 million annually in the second through fifth years. The department said it expects to add the equivalent of 4.5 full-time staff to provide oversight.

In a separate action Friday, officials rescinded a guidance letter about Medicaid that was issued by the Obama administration in 2016, which they say limited states’ authority to regulate providers within their borders. That letter said states attempting to disqualify abortion providers from their Medicaid programs could come under federal scrutiny.

By contrast, officials explained, a new guidance letter aims to empower states to make the most appropriate decisions for themselves. In recent years, Indiana and other states have blocked Medicaid funds from Planned Parenthood because of the abortion services it offers. The new policy could allow states to receive millions in federal funding while banning abortion providers from participating in a family planning program for low-income women.

The state likely to take immediate advantage of the policy reversal is Texas, which last year submitted a waiver petition to the Centers for Medicare and Medicaid Services asking to regain funding it stopped accepting for its Healthy Texas Women program when it chose to exclude providers that “perform or promote elective abortions” or contract or affiliate with such providers.

The administration has yet to issue a decision in that case.

Dawn Laguens, executive vice president for the Planned Parenthood Action Fund, said the reversal is meant to encourage states to block access to care at Planned Parenthood and “control where women can go for health care.”

“The law is clear: It is illegal to bar women from seeking care at Planned Parenthood. Long-standing protections within Medicaid safeguard every person’s right to access care at their qualified provider of choice,” Laguens said in a statement.

Some health and legal experts question whether the proposed rule on conscience rights could be broadly interpreted and whether, as an example, a doctor could refuse sex-reassignment surgery to someone who is transgender. Existing laws do not specifically address if a doctor can deny services related to an individual's sexual identity; “the statutes focus on actions providers say they can’t do in good conscience,” Severino said.

Severino did not rule out that LGBT-related cases could come up once the rule becomes final. “It’s difficult to deal with every hypothetical in a law-enforcement context because we can’t prejudge every case that comes through,” he said.

Under the Obama administration, Severino said, HHS did not provide much guidance, enforcement or outreach on medical issues involving moral or religious liberty claims. The department received 10 complaints under Obama, and it has received 34 since Trump took office a year ago.

“The regulations make clear and give notice to the public that we’re in business on these statutes, and we’ll give it the proper focus and energy they deserve because they’ve been ignored for too long,” he said.

Severino said the regulations are an outgrowth of Trump's 2017 executive order that included a section on “conscience protections.” That order was seen as a direct response to some of the Obama administration actions that upset religious conservatives.

Several religious groups battled the Obama administration over the Affordable Care Act’s mandate that employers and insurers provide no-cost contraceptive coverage for employees. In October, HHS introduced rules expanding the range of businesses that can object to the requirement on religious or moral grounds and receive an exemption.

“The protection of conscience is a freedom that for too long has not been given the attention it deserves,” Severino said Friday.

Many religious conservative groups are praising HHS's moves this week.

“Americans should not be forced to choose between their faith and their desire to help patients,” Tony Perkins, president of the Family Research Council, said in a statement. “As President Trump continues to follow through on his promises on these core issues, he will continue to have the support of social conservatives on his policy initiatives.”

Those on the political and religious left, however, see the actions as an attack on all patients' right to receive health care. HHS is setting up a system to allow discrimination, said the Rev. Mike Scheunemeyer, who leads Health and Wholeness Advocacy Ministries, United Church of Christ.

“When I look at how Jesus responded to the people who came to him to be healed, I can find no example of him turning anyone away,” Scheunemeyer said in a statement. “This is the example we should emulate in America.”

Camilla Taylor, acting legal director of Lambda Legal, said in an interview that the proposed conscience regulations would not only allow health-care providers to turn away patients “in violation of medical and ethical rules which require they provide care without discriminating” but also to excuse them from having to give referrals for other providers.

“The proposed regulations are an outrageous attack on the most vulnerable Americans,” Taylor said. “They allow health-care providers to deny care while receiving federal funding to certain patients based on who they are.”

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