EPPC Scholars and Others Respond to HHS’s Proposed Rule on Conscience Rights in Health Care

March 7, 2023

Yesterday, EPPC scholars Rachel N. Morrison, Eric Kniffin, Mary Rice Hasson, and Natalie Dodson submitted a public comment responding to a proposed rule by the U.S. Department of Health and Human Services (HHS) Office for Civil Rights that would modify the 2019 Rule’s robust protections for conscience and religious freedom rights in health care. 

HHS is charged with enforcing over two dozen federal laws that provide protections for entities and individuals that do not want to participate in or pay for the most controversial medical interventions—including abortion, sterilization, and assisted suicide—based on moral convictions or religious belief. 

HHS claims that the proposed rule will “safeguard rights of conscience,” “strengthen conscience and religious nondiscrimination,” and “prevent discrimination.” Yet as the EPPC scholars explained in their comment, HHS’s proposed rule tells “a very different story.” 

HHS’s proposed rule would eliminate the robust enforcement mechanisms in the 2019 Rule, including its assurance, certification, and compliance requirements. HHS claims its proposal will reduce confusion and provide clarity. But it would delete definitions of key terms, explanations of applicable requirements and prohibitions for each conscience protection law, and the detailed enforcement scheme, making its proposal arbitrary and capricious. HHS also claims the authority to balance conscience rights against other interests, even though the conscience protection laws passed by Congress provide for no such balancing. In short, HHS’s proposed rule—coupled with the Biden-Becerra HHS’s abysmal track record on protecting conscience and religious freedom rights—undercuts the Department’s assertions that it takes these rights seriously. 

The scholars urged HHS to defend the 2019 Rule in court, or in the alternative, retain or improve on—not gut—the provisions in the 2019 Rule providing robust enforcement of the conscience protection laws HHS is charged with enforcing. 

A diverse group of medical professionals, former HHS Office for Civil Rights staff, religious groups, and legal and policy experts also submitted comments responding to HHS’s proposal. 

About the EPPC comment signers: 

Rachel N. Morrison, J.D., is an EPPC Fellow, director of EPPC’s HHS Accountability Project, and former attorney at the Equal Employment Opportunity Commission. 

Eric Kniffin, J.D., is an EPPC Fellow, member of the HHS Accountability Project, and a former attorney in the U.S. Department of Justice’s Civil Rights Division. 

Mary Hasson, J.D., is an EPPC Fellow, attorney, and co-founder of EPPC’s Person and Identity Project, an initiative that equips parents and faith-based institutions to counter gender ideology and promote the truth of the human person. 

Natalie Dodson is a Legislative and Regulatory Affairs Associate and member of EPPC’s HHS Accountability Project

Other organizations and experts submitting comments on the proposed rule include: 

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