Biden administration drops protections for religious health care providers

Biden U.S. President Joe Biden speaks during a campaign event at Montgomery County Community College Jan. 5, 2024, in Blue Bell, Pennsylvania. | Credit: Drew Angerer/Getty Images

The Biden administration announced a new rule change Tuesday that experts are saying threatens the rights of religious doctors and health care providers to refuse to perform abortions and transgender surgeries.

Roger Severino, vice president of domestic policy at the Heritage Foundation and the former director of the Department of Health and Human Services Office for Civil Rights (OCR), told CNA that the Biden administration’s rule change “constitutes a full-scale retreat from conscience enforcement by the Office for Civil Rights in the name of answering to the desires of the abortion lobby.”

The new rule, titled “Safeguarding the Rights of Conscience as Protected by Federal Statutes,” is scheduled to take effect on March 11. In a Jan. 9 press release announcing the new rule, the HHS said that the changes “would increase access to care and prevent discrimination.”

The rule formally rescinds certain provisions laid out by the HHS in 2019, when Severino was serving under the Trump administration. The 2019 rule guaranteed doctors and medical practitioners the ability to refuse to perform abortions for religious or conscience reasons. Due to several federal court rulings, the 2019 Trump rule never took effect; however, laws protecting conscience rights continue to remain on the books.

The Biden administration says the new rule only “partially rescinds the 2019 rule,” because “those portions are redundant, unlawful, confusing, or undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care, or because significant questions have been raised as to their legal authorization.”

According to Severino, the change is the latest in a yearslong record of rolling back key conscience protections.

“From the beginning, conscious enforcement was targeted for revocation by the Biden administration at the behest of the abortion industry,” he said. 

“They started with announcing that they would prioritize abortion. They supercharged it with the Dobbs decision. They announced the disbanding of the Conscience and Religious Freedom Division within the Office for Civil Rights [and] abandoned the enforcement in litigation of a multitude of cases that were brought by OCR under Trump. And the cherry on top has been now the gutting of the regulation that simply placed conscience enforcement at the same level as every other civil right,” Severino said.

This latest move, he claimed, sends the message that the administration has abandoned the enforcement of conscience protection laws mandated by Congress.

Severino said that “this administration is simply hostile to federal law that protects conscience rights of Americans. That’s the shame of this situation.”

“It’s not as if the rights of conscience have not been violated, especially in very liberal pro-abortion states. If anything, they’ve multiplied after Dobbs,” he said, explaining that during his time leading the OCR, he encountered hundreds of such complaints.

“Yet the Office of Civil Rights has been absolutely absent on these because we’ve not heard of any enforcement actions coming through, and we’re entering year four of this administration,” he said. “What happened to all of those complaints? I have heard of zero enforcement actions done because this administration is ideologically captured and refuses to enforce black letter law.”

Groups such as Planned Parenthood and the National Women’s Law Center (NWLC), meanwhile, are celebrating the Biden rule change.

Alexis McGill Johnson, president and CEO of Planned Parenthood, called the rule change a “step in the right direction,” adding that “everyone should have the information and health care needed to make their own decisions about their lives, bodies, and futures.”

“This rule reaffirms that patient health comes first,” said Fatima Goss Graves, president and CEO of NWLC. “Refusals of care based on personal beliefs — which happen even in states where abortion is legal — harm patients.”

Graves went on to say that “the care a patient receives should never be dictated by the personal or religious beliefs of health care providers or politicians.” 

Andrea Picciotti-Bayer, director of the Conscience Project and a legal analyst for EWTN, told CNA that despite the controversy, the “legal protections for health care workers of conscience rights are still in place” even if the Biden administration has signaled an unwillingness to enforce them.

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“What’s happening is a little bit of smoke and mirrors,” she explained. “The rules that were established were to facilitate the executive branch’s enforcement of those rules. So, the fact that they’re watering down these conscience rules doesn’t undermine the fact that there’s still a statutory right to refuse to engage in procedures or interventions that violate a person’s conscience.”

“What it does do is it puts pressure to align with the administration’s priorities by making it difficult to get your complaints heard and by kind of clouding the obligations that big hospitals have to respect their workers’ rights,” she went on.

“It’s creating confusion,” she said, adding that it is “giving the sign that the Biden administration isn’t all that serious when it comes to robust protection for health care workers’ conscience rights.”

“They’re incapable of erasing those rights, but it looks like they’re going to do all in their power to make people think that they don’t have them,” she said.

The consequence of the Biden administration’s rule change, Picciotti-Bayer fears, may be that “true medical care” becomes “harder and harder for Americans to access because people of faith and faith-inspired institutions are being driven out of business.”

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