HHS Issues Final Rule on Conscience Rights in Healthcare

Published January 31, 2024

The Federalist Society

On January 11, 2024, the U.S. Department of Health and Human Services (HHS) issued a final rule entitled “Safeguarding the Rights of Conscience as Protected by Federal Statutes,” which concerns over two dozen federal laws protecting healthcare conscience rights.

These laws represent Congress’ judgment that covered entities must not coerce people into participating in or paying for highly controversial medical inventions—including abortion, sterilization, and assisted suicide—against their religious beliefs or moral convictions. Since many of these laws do not contain a private right of action, the Department’s regulations and enforcement by its Office for Civil Rights (OCR) are important to fulfill Congress’ purpose and adequately protect conscience rights in healthcare.

The 2024 Final Rule largely adopts HHS’s February 2023 proposed rule (summarized here), with some improvements. This is the fourth iteration of HHS regulations on conscience rights, with the Department issuing prior regulations in 2008 (Bush), 2011 (Obama), and 2019 (Trump). The 2019 Rule never went into effect, as Democrat-controlled political entities challenged the rule in court. Three federal district court judges issued nationwide injunctions against the rule, each based on a different rationale, leaving the 2011 regulations in place. HHS under the Trump administration appealed each of those decisions, but these appeals were put on hold at the Biden administration’s request while it developed its own regulations.

As proposed, the 2024 Rule formally rescinds the Trump-era 2019 Rule and replaces the 2011 Rule. The new rule maintains certain aspects of the 2019 Rule, including its application to the full range of conscience laws HHS oversees—an improvement on the 2011 Rule, which only applied to three laws. The new rule, however, guts the 2019 Rule’s substantive provisions, including definitions, enforcement procedures, and explanations of federal conscience protection laws.

HHS Improves Text of Conscience Regulations in Response to Comments

HHS received more than 48,000 written public comments in response to its 2023 proposed rule. As detailed in HHS’s Fact Sheet, the Department made several improvements to the proposed regulatory text in response to those comments. These changes, on the whole, strengthen protections for healthcare conscience rights.

For example, the regulations now:

  •     clarify that “OCR shall make a prompt investigation” of any complaints alleging violations of federal conscience protection laws;
  •     explain that if an entity fails to respond to a request for information (absent good cause), “OCR will adopt a negative inference,” thereby encouraging responses;
  •     state that if a matter cannot be resolved by informal means, OCR will “utilize existing enforcement regulations,” may “withhold relevant funding,” and may refer the matter to DOJ for litigation;
  •     incentivize covered entities to post notices informing employees of their rights under federal conscience protection statutes by considering it as “a factor in any investigation or compliance review”; and
  •     include a new sentence in the model notice that provides more context to the rights protected by the conscience laws: “You may have rights as a provider, patient, or other individual under these Federal statutes, which prohibit coercion or other discrimination on the basis of conscience, whether based on religious beliefs or moral convictions, in certain circumstances.”

HHS Reaffirms Commitment to “Balancing” Rights Despite Conceding Conscience Laws Do Not Contain Balancing Tests

While the regulatory text in the final rule is stronger than that in the proposed rule, HHS’s thirty-page preamble does little to assuage longstanding concerns that neither this administration nor HHS Secretary Xavier Becerra is willing to honor religious or moral objections when they conflict with their policy priorities.

Consistent with the Biden administration’s pro-abortion and pro-LGBT policies, Secretary Becerra has consistently reiterated his strong commitment to protecting and promoting access to abortions and medical “gender transitions.” In response to Dobbs, Becerra promised that HHS would “double down and use every lever [it has] to protect access to abortion.” He pledged to “continue to fight . . . to ensure that [Americans] have access to the [‘gender-affirming care’] they need,” and to put these needs “above the hateful and harmful beliefs of a narrow-minded few.”

In the proposed rule, HHS claimed that Congress has sought to “balance” conscience rights against patients’ ability to access such medical interventions. HHS notes that commenters had pointed out that Congress has done no such thing: federal conscience laws “set forth absolute protections.” For example, the Church Amendments state that a covered entity must not, under any circumstances, discriminate against a medical professional with either religious or moral objections to participating in an abortion or a sterilization procedure.

Nevertheless, in the final rule, HHS still asserts that “the Federal health care conscience protection statutes represent Congress’ attempt to strike a careful balance between the rights of both providers and patients, and the Department intends to respect that balance.”

The Department, however, acknowledges commenters were correct, explicitly recognizing that “the text of the conscience statutes themselves generally does not contain balancing tests” and that its balancing approach does not reflect “the legal requirements specific to each conscience statute set forth in this rule.”

Pro-abortion and pro-LGBT groups applauded HHS’s final rule. The Human Rights Campaign praised HHS’s balancing approach, which it said “ensure[s] patients have access to essential care, regardless of the provider’s beliefs.” Planned Parenthood likewise claims the rule affirms that “No one should be denied health care.” According to the National Center for Lesbian Rights, the final rule “is premised on the recognition that a proper balance must be struck between respecting conscience and ensuring that people get the health care they need.”

HHS Declines to Define Scope of Conscience Protections, Asserting Application on Case-By-Case Basis

Just as HHS decided to scrap the detailed definitions and enforcement procedures in the 2019 Rule, it also rejected calls from commenters to speak clearly about situations when the Church Amendments and other conscience laws apply.

For instance, in response to the proposed rule’s statement that conscience regulations should not “lead to increased . . . denials of care for . . . the LGBTQ community,” commenters asked HHS to affirm that the Church Amendments would protect medical professionals’ right to decline to participate in sterilizing “gender transition” procedures. HHS declined to address this concern. Instead of addressing such specific issues raised by commenters—and providing needed clarity for healthcare professionals and institutions—HHS merely says in the final rule that it will apply conscience protection laws on a “case-by-case basis.”

While the 2024 Final Rule is an improvement over the proposed rule, it reveals that HHS places a low priority on thoroughly interpreting and vigorously enforcing federal healthcare conscience protection laws.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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