The 2022 NPRM would “partially rescind” a 2019 rule loosening religious nondiscrimination rules, which critics said worsened patient care access for marginalized groups.
By Sara Heath
January 04, 2023 – The Department of Health and Human Services (HHS) is making moves to reverse a 2019 rule that expanded religious nondiscrimination and moral conscience protections. The agency said this latest action will continue to protect religious freedom for healthcare workers while allowing for patient care access regardless of religion, color, sexual orientation, or other demographic factors.
Particularly, the notice of proposed rulemaking (NPRM) from HHS restores the 2011 framework for moral and religious protections in healthcare. It rescinds a May 2019 rule that further bolstered moral and religious protections for healthcare workers, virtually making it easier for healthcare providers to claim a moral objection when administering healthcare to certain patients.
“No one should be discriminated against because of their religious or moral beliefs, especially when they are seeking or providing care,” HHS Secretary Xavier Becerra said in a statement about the 2022 NPRM. “The proposed rule strengthens protections for people with religious or moral objections while also ensuring access to care for all in keeping with the law.”
HHS said the 2019 final rule loosened definitions for moral and religious protections, created new compliance rules, and retooled the enforcement mechanisms for some religious protections for healthcare workers. The 2019 final rule made it easier for healthcare workers to claim religious protections while treating patients, such as refusing to treat an LGBTQ+ patient.
This 2022 NPRM “partially rescinds” those rules, HHS wrote, and leaves in effect the 2011 framework for religious and moral protections.
But the entire 2019 rule is not going away, the agency said in the NPRM.
“The Department also proposes to retain, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections but eliminate others because they are redundant or confusing, because they undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care access, or because significant questions have been raised as to their legal authorization,” HHS wrote.
HHS is seeking public comment about which portions of the 2019 final rule it should keep in effect.
Religious and moral protections for healthcare workers, in many cases, boil down to patient access to care, HHS officials indicated. Although religious and moral freedom is foundational to the nation, patient access to care and freedom from discrimination are also essential. Moral and religious protection rules must walk a fine line between protecting the rights of the provider and the patient.
“Protecting conscience rights and enforcing the law to combat religious discrimination is critical,” Melanie Fontes Rainer, the director of the Office for Civil Rights, said in the statement. “Today’s proposed rule would strengthen these protections and reinforce our long-standing process for handling such conscience and faith-based objections. It also would take steps to help ensure that individuals are aware of their rights.”
HHS said it is rescinding parts of the 2019 final rule because it was blocked by three federal district courts. In November 2019, US District Judge Engelmayer said the enforcement actions laid out in the 2019 final rule were akin to coercion. The rule stated that HHS would withdraw federal funding for certain employee complaints about impositions on religious and moral freedoms.
“Wherever the outermost line where persuasion gives way to coercion lies, the threat to pull all HHS funding here crosses it,” Engelmayer wrote in his decisions, as reported by Reuters at the time.
Engelmayer also stated that the HHS rule was “arbitrary and capricious” and got in the way of other federal protections for religious liberty in the workplace. The rule also impeded requirements to deliver emergency treatment to all patients, including those who are low-income and who might rely on federally funded hospitals and clinics.
Proponents of the 2019 rule asserted that it protected medical workers who had been facing some sort of pressure or persecution in the medical setting because of their religious beliefs. The rule sought to protect those medical professionals from negative consequences for choosing not to administer, participate in, pay for, or provide coverage for a medical procedure that may have gone against their beliefs, a civil right HHS contended was in need of protecting.
But Judge Engelmayer suggested that this rule was making a problem out of nothing, noting that HHS made “factually untrue” and “demonstrably false” claims about increases in conscience objection violations.
The 2019 final rule was unpopular among industry groups, as well, with the AMA, AHIP, and 21 state attorneys general speaking out against it in August 2019.
The 2019 final rule was made under a previous administration. This latest move is the act of the Biden Administration, which said it will work to protect healthcare worker rights while also ensuring patient access to care for all.
From the patient’s perspective, most agree that access to care should take precedence, at least when it comes to an organization’s overall mission. According to a 2020 study in JAMA Network Open, most patients don’t consider a hospital’s religious affiliation when selecting where to access care.
That can impact the kind of care a patient gets, especially with regard to reproductive healthcare and end-of-life care, the researchers noted.
Seven in 10 patients told the researchers that they think their healthcare needs should take precedence over a healthcare organization’s religious affiliation.
“Our findings demonstrate that most patients place great emphasis on their autonomy, effectively disagreeing with ongoing protections for institutions to restrict care on the basis of their religious or moral values,” the researchers wrote.
“Advocacy efforts are needed to enact legislation that counterbalances protections for institutions with protections for patients. Because women are disproportionately affected by religious restrictions to care, as are LGBTQIA (lesbian, gay, bisexual, transgender, queer, intersex, and asexual) patients and those in rural settings, advocates must work toward antidiscriminatory policies and legislation.”