Get a free copy of Parental Rights & Education when you subscribe to our newsletter!
By relying once again on an obscure federal financial law to force doctors and hospitals into performing abortions against their religious beliefs and state law, this HHS guidance deceptively diminishes rather than bolsters conscience rights.
Even as the Department for Health and Human Services (HHS) battles states in court to try to force physicians to perform certain abortions in violation of state law, it has now issued a rule that opponents claim will strip conscience protections from medical professionals.
The rule, released Tuesday, is known as “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” It rescinds parts of a 2019 rule, which expanded protections for physicians who objected to performing medical procedures on conscience grounds. The 2019 rule never went into effect after it was held up in three separate courts.
Specifically, the new rule will strip out protections within the 2019 unenforced rule that prohibited federal law from requiring health care workers “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.”
HHS is portraying the rule as an expansion of conscience protections, while also ensuring that patients can receive any procedure they desire. HHS Secretary Xavier Becerra said in a statement,
“Today’s rule is another promise delivered by President Biden, working to strengthen conscience protections and advance health care, free from discrimination. The Final Rule clarifies protections for people with religious or moral objections while also ensuring access to care for all in keeping with the law.”
Melanie Fontes Rainer, director of the HHS Office for Civil Rights, added,
“Protecting conscience rights and ensuring access to health care are critically important, no matter who you are, where you live, who you love, or your faith and conscience. Our office has statutory mandates to protect people across the country and takes this responsibility very seriously….Some doctors, nurses, and hospital, for example, object for religious or moral reasons to providing or referring for abortions or assisted suicide, among other procedures. Respecting such objections honors liberty and human dignity.”
On the other side of the issue, HHS explained that patients “also have rights and health needs, sometimes urgent ones. The Department will continue to respect the balance Congress struck, work to ensure individuals understand their conscience rights, and enforce the law.”
While HHS couches the rule as a win for both sides, both supporters and opponents see it as essentially a win for secular orthodoxy and a loss for religious liberty.
The American Humanist Association, for example, celebrated its belief that the rule will make it harder for healthcare professionals to invoke their conscience rights, posting on X (formerly Twitter): “Great news! @HHSGov issued a nondiscrimination final rule today, ‘Safeguarding the Rights of Conscience as Protected by Federal Statutes.’ This partially rescinds a 2019 rule, making it more difficult to deny healthcare based on personal religious beliefs.”
Carol Tobias, president of the National Right to Life Committee, criticized the rule saying the administration showed it is “willing to trample on the rights of millions of healthcare workers by changing a rule designed to protect them from having to perform abortions against their religious or ethical convictions.”
Tom McClusky, CatholicVote’s director of government affairs said that the rule wasn’t as bad for pro-life doctors as it could have been due to an “onslaught of public protest,” but “the rule definitely leaves Americans at the mercy of [HHS Secretary] Becerra’s whims — and whether he feels that the protections we do have are even worth enforcing.”
One of the major concerns that Alliance Defending Freedom and other advocates for religious freedom have with the new rule is that, within it, HHS says physician decision-making should be guided by the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), a provision of the 1986 Medicare Act that is being twisted to force hospitals and ER physicians to provide abortions against state law. Critics of this legal maneuver note that state laws already provide for abortion if the life of the mother is at stake and that EMTALA itself does not prescribe any specific medical care guidelines to doctors.
At present, HHS and other executive agencies are party to two federal lawsuits that question whether EMTALA can be used to force doctors to perform abortions against state law or their conscience. In the aftermath of the Dobbs ruling that turned abortion regulation back to the states, HHS issued guidance saying that under the law, hospitals and physicians are required to provide abortions if the life of the mother or a bodily function is at risk.
The state of Texas and medical associations sued HHS, and the U.S. Court of Appeals for the Fifth Circuit recently issued an injunction against HHS on January 2, ruling that EMTALA says nothing about abortion and does not prescribe any medical treatments that doctors must take. The Fifth Circuit also ruled that the unborn child is protected by EMTALA and doctors are required to provide stabilizing care for both the mother and the unborn child.
In the other case, DOJ sued the state of Idaho over its abortion restrictions, and a U.S. District Court judge issued an injunction against the law. That case is now headed to the Supreme Court to determine if EMTALA supersedes state law on abortion.
The new HHS rule will take effect 60 days after it’s published in the Federal Register.
Even when he was California’s attorney general, Xavier Becerra showed very little regard for religious liberty or conscience rights, especially around the issue of abortion. It’s not surprising then that the HHS under his guidance has also shown it not only has very little interest in protecting conscience but is much more concerned with expanding access to abortion to the highest degree possible. That should inform Americans as to what the motives behind this new rule are.
Conscience protections are essential to a free society. If a person can be forced under threat of punishment to kill an unborn child in violation of their religious beliefs, then there is no true protection for religious liberty from the ever-changing whims of a government that thinks it knows best.
The state cannot be permitted to demand compliance to its own favored orthodoxy, which increasingly is to find any loophole to push abortion access, even if it violates not just a healthcare worker’s conscience but also state law.
Hopefully, the Supreme Court will affirm, without equivocation, that EMTALA does not supersede a doctor’s conscience or a state’s right to set abortion restrictions. Freedom for everyone, not just pro-lifers, is at stake.
If you like this article and other content that helps you apply a biblical worldview to today’s politics and culture, consider making a donation here.
