What is the conscience rights regulation?
This regulation was proposed by the U.S. Department of Health and Human Services (HHS) last August, and issued in final form on December 19, 2008 after a lengthy period for public comments. It implements and enforces three longstanding federal laws that protect individual and institutional health care providers from being forced to participate in procedures such as abortion to which they have a moral or religious objection.
What do these federal laws guarantee?
The oldest and most extensive law, first enacted by Congress in 1973, helps ensure that health care personnel with moral or religious objections to abortion or sterilization (or, in some contexts, other medical or research activities) are not discriminated against by entities receiving certain kinds of federal grants. It also forbids health care entities that receive certain federal grants or contracts to discriminate in training and employment against health professionals or applicants for study because they are willing or unwilling to participate in abortion or sterilization (Church amendment, 42 USC § 300a-7). The second law, enacted in 1996, forbids federal agencies, and state or local governments receiving federal funds, to discriminate against health care providers and health training programs because they do not provide abortions or abortion training (Coats/Snowe amendment, 42 USC § 238n). The third law, part of the Labor/Health and Human Services appropriations bill every year since 2004, forbids federal funding under that bill for government bodies which discriminate against health care providers and insurers not involved in abortion (Weldon amendment). For texts of these laws see www.usccb.org/prolife/Dec08fedconslaws.pdf.
If these laws already exist, why do we need the regulation?
While the laws have been in effect for as long as 36 years, some state and local governments as well as professional societies and advocacy groups still attack conscience rights as though they do not exist – and many health care providers do not even know they have these rights. Enforcement is also hampered by undefined terms in the laws, and by failure to identify a federal office responsible for defending these conscience rights.
How does the regulation address these problems?
To clarify the laws, the regulation defines key terms: for example, it explains what kinds of health care providers are covered, and what it means to say that providers cannot be forced to “assist” in performing objectionable procedures. It requires certain recipients of federal funds to certify that they understand and will comply with the conscience laws, and it gives responsibility for enforcement to the HHS Office of Civil Rights.
Why has the Obama Administration sought to rescind the regulation?
The Administration says the regulation may reach more broadly than the underlying statutes – for example, going beyond conscience protection on abortion to cover other procedures. It also claims the regulation must be reviewed for its “consistency with current Administration policy” (74 Fed. Reg. at 10207, 10209 (March 10, 2009)). But in fact, the 1973 statute itself covers procedures besides abortion, and the regulation simply tracks the statute it was designed to implement. And the Administration’s primary constitutional duty is not to impose its own policy preferences, but to faithfully enforce the laws passed by Congress.
Does conscience protection hinder women’s “access” to some health care?
In fact, weakening conscience protection will reduce women’s access to all health care, by driving conscientious physicians and nurses out of medicine or out of the specialties (e.g., obstetrics and gynecology) where pressures to violate conscience are greatest. Many underserved areas, from rural counties to inner cities, are served only by religiously-affiliated health care providers; if they cannot provide care without violating the religious mission that led them to serve the poor in the first place, the area could end up with no health care provider at all.
Isn’t the religious freedom of health care providers protected by the Constitution?
Yes, but since the Supreme Court’s Employment Division v. Smith decision in 1990 that protection is limited. If a law serves a legitimate government interest and is generally applicable (i.e., is not directed against a religion), even a religious institution may not be exempted from the law’s requirements for religious reasons. Using this standard, courts have denied Catholic institutions’ plea to be exempt from state laws mandating contraceptive coverage in all employee prescription drug plans. The Court says that if lawmakers want such exemptions they must write them into the laws. Hence there is a greater need than ever for laws protecting conscience, and for vigorous enforcement of laws already in place.
Have threats to conscientious objection become worse in recent years?
Yes. In the past decade, New York and California have considered laws to force Catholic hospitals to provide abortions and other “services” against Catholic teaching. The Alaska Supreme Court in 1997 forced a community hospital to provide abortions against its will, in the name of greater access to abortion. Many pro-abortion groups have launched campaigns to make health care providers violate their consciences, and some groups (e.g., “Merger Watch”) were founded specifically for this purpose. Federal laws protecting conscience rights must be clear, and fully enforced, if these rights are not to be lost.
How can an individual help?
Visit the web page www.usccb.org/conscienceprotection
. Learn more about this issue, and click on the “Act NOW!” button to send a message to the Department of Health and Human Services before April 9. Urge the government to retain the conscience rights regulation.