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Chasing Religious Freedom: Obama Admin’s New Rule Strips Essential Rights of Conscience Protections

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On Friday, February 18th, the Obama Administration rescinded key provisions of Bush-era regulations that were critical to the enforcement of the Church Amendments and other longstanding federal laws protecting the rights of conscience of health care professionals.

The new Final Rule (1)  rescinds, in part, George W. Bush’s 2008 Final Rule (2).   The new rule purportedly does not alter statutory protections for health care professionals as established under the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendments.  The Final Rule states: “These federal statutory health care provider conscience protections remain in effect.”

The Obama Administration claims that the Final Rule retains all existing health care conscience protections, while removing “unclear and potentially broad” language that has caused “confusion.”

However, this statement is only partially true and is dangerously misleading.

Although the new Final Rule leaves intact regulatory protections for refusal to participate in abortion and sterilization on grounds of conscience, it removes regulatory protections for medical professionals and students who conscientiously refuse to perform in-vitro fertilizations or distribute contraceptives (including abortion drugs which have been mis-categorized by the FDA as contraceptives, e.g., Ella).

The new Final Rule removes these protections by rescinding the section of definitions in Bush’s 2008 Final Rule.  That section provided a definition for the Church Amendment’s term, “health care program.”  A brief summary of the content of the Church Amendments is necessary to understand the significance of this term:

The Church Amendments prohibit recipients of federal funds 1) from requiring health care professionals to perform or assist in the performance of abortions or sterilizations; 2) from discriminating in the employment, promotion, termination or extension of privileges of any medical professional who refuses to participate in abortion or sterilization; 3) from discriminating against researchers who refuse to participate in research that violates his/her conscience (e.g., embryonic stem cell research); and 4) from discriminating against medical and other health professional students or applicants for admission, training or study based on a student’s conscientious objection to abortion or sterilization.  Furthermore, in perhaps their key provision, the Church Amendments provide blanket protection which gives maximum religious freedom protection for medical professionals.  Section (d) of the text states that:

No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions. (Emphasis added.)

It is clear that the legislative intent behind the Church Amendments is to provide broad conscience protections for medical professionals in more than just the abortion and sterilization context.  The over-arching spirit of the statute is to provide maximum protection for rights of conscience.  Conscientious objection to distributing contraceptives and performing in-vitro fertilizations falls squarely and obviously within the text of the Church Amendments.

Furthermore, the inclusion of the blanket provision purposely allows room for conscientious objection to participation in new scientific and medical developments, procedures (e.g., new methods of artificial reproduction) and drugs (e.g., Ella) that emerge in the future.

The definition of “health service program” was included in the 2008 Final Rule in order to apply and enforce the section quoted above.  The Bush regulations defined “health service program” as “any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded, in whole or in part, by the Department. It may also include components of State or local governments.”

The Obama Administration’s rescission of this definition renders Section (d) virtually unenforceable and ineffective.  Although the process for filing complaints in the abortion and sterilization contexts has been maintained under Obama’s Final Rule, there is no formal complaint process for any other type of violations of the Church Amendments.

The Obama Administration tries to go around this issue by arguing in its Final Rule that: “The provision of contraceptive services has never been defined as abortion in federal statute.  There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception.”  Although these are correct statements, they are being misapplied and presented in a misleading way.  Protection for the right to object to distributing contraceptives on moral grounds is found in the blanket protections of Section (d) of the Church Amendments, and not Section (b), which is limited specifically to abortion and sterilization only.  Thus, the continuous reference to Section (b) is irrelevant and inappropriate.  In essence, Obama’s Final Rule treats the Church Amendments as if Section (d) did not exist, and purposefully diverts public attention only to Section (b).

Media sources such as The Washington Post have falsely stated that the 2008 Final Rule shielded health professionals who refuse to care for men with homosexual attractions with AIDS or who refuse to perform in-vitro fertilization for lesbians or single women.  These accusations are absolutely false.  The 2008 Final Rule applied the Church Amendment’s longstanding provision of allowing conscientious refusal to participate in distributing contraceptives and performing in-vitro fertilization.  It does not authorize health care professionals to refuse to provide services based on discrimination against the recipient of care.  Refusing to provide contraceptives to a homosexually attracted man with AIDS because of a moral objection to providing contraceptives is not the same as a refusal based on the homosexual behavior of the man.  Similarly, refusing to perform in-vitro fertilization on a lesbian or single woman because of a moral objection to in-vitro fertilization is not the same as a refusal based on the fact that the woman is homosexually attracted or single.

The Church Amendments and the 2008 Final Rule allow health care professionals to exercise moral objection to the performance of certain procedures, not to exercise discrimination against certain kinds of people.  It would have been very easy for the Obama Administration to clarify this distinction in its Final Rule.  It is disappointing that it did not.

In conclusion, all the existing federal conscience statutes, including the provisions of the Church Amendments, are putatively left in place under the new Final Rule.  However, the Obama Administration’s rescission of key implementation regulations makes the enforcement of the non-abortion/sterilization related provisions much more difficult, and puts medical professionals’ and students’ right to religious freedom in jeopardy.

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(1) Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 45 CFR Part 88.
Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or (2)Practices in Violation of Federal Law, formerly 45 CFR Part 88.

(c) 2011 Culture of Life Foundation.  Reproduction granted with attribution required.