Conscience Regulations: HHS Stops (Just) Short of Rescission

The U.S. Department of Health and Human Services (HHS) issued its long-awaited decision today on rescinding conscience regulations to protect health care providers from having to engage in medical procedures to which they object on religious or moral grounds.

Because a real concern existed that the Obama Administration might repeal these 2008 regulations outright, the partial rescission could be construed as a partial victory for conscience protection advocates. But the accent is on the word partial—because the rescission strictly limits the scope of the regulations and contains plenty of room for mischief.

The affected regulations were first issued in December 2008. They were designed to enforce a series of laws Congress has adopted over the years to protect the conscience rights of a wide range of health care institutions and personnel, including medical school applicants. The various laws focus on abortion and sterilization—but not exclusively, as the scope of controversial medical practices is not limited to these two subjects. In March 2009 the Obama Administration announced it was suspending the regulations with a view toward rescinding them completely. A comment period was begun and the response was large—after all, the 2008 regulations represented the first time the federal government had set forth a process whereby complaints could be filed with the HHS Office of Civil Rights. Of the 300,000 responses, nearly 187,000 favored retaining them and 97,000 favored ending them.

HHS’s long-awaited response does a bit of both but more of the latter. The document released today is very short for a government action (just 41 pages), mostly because the notice snips out sections of the regulations. In brief, beginning with the good news:

  • HHS makes clear that its regional Offices of Civil Rights will receive and investigate complaints, working with the relevant funding agencies whose grants and contracts with health care providers trigger the law’s coverage. Violation of conscience rights, it says, can result in loss of federal funding by the violator and even a demand to return granted or contracted funds.
  • HHS will require notices of the conscience laws in its grant and contract paperwork with funded entities to build awareness of these laws, about which there has been little notice to health care providers.
  • However, the 2008 regulations’ requirement that grant and contract recipients certify their compliance and intent to comply with the law is gone. Too much paperwork, HHS says—a rarely heard complaint from its vicinity in recent years.
  • Next, the regulations’ potential application outside of abortion and sterilization, which are specifically mentioned in some but not all of the underlying conscience laws, is squelched. As controversial as abortion and sterilization can be, they are not the only issues that arise in medical practice, especially in the new biotech century. The rescission goes out of its way to make clear HHS’s view that these laws “were never intended to allow providers to refuse to provide medical care to an individual because the individual engaged in behavior the health care provider found objectionable.” This interpretation would appear to apply to, for example, a situation where an unmarried couple seeks a service that a provider might willingly offer to a married couple.
  • HHS underscores that the conscience regulations do not apply to “contraception,” a potential minefield given the growing array of medical devices and medicines that operate both before and after conception. Biology may not honor the sharp distinction HHS envisions here.

Finally, the new rule indicates that HHS will move forward on a case by case basis to enforce the law. This could have value as opposed to attempting to define all of the potential conflicts that can arise in modern medical practice, but it might also offer a means for this $1 trillion per year federal department to gestate cases and investigations for years at a time. An online list of complaints, their investigatory status, and contemplated review and resolution date might assist the public in concluding that HHS means business on conscience protection. That would be cold comfort to a nurse told she must participate in an abortion or face rejection of her graduate school application if she refuses to take part in an act she abhors.

Source material can be found at this site.

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