Mary Hanahan
Associate Editor
Loyola University Chicago School of Law, JD 2018

 

The Trump administration has established a new division within the Department of Health and Human Services (HHS) called the Conscience and Religious Freedom Division. The stated purpose of this office is to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

One day after the creation of this division, HHS proposed a new rule, providing further protections to healthcare workers who object to providing certain types of care to patients—including elective sterilization, gender reassignment surgery, or emergency contraception—based on their personal religious beliefs. Additionally, the Trump administration issued a new directive, reversing an Obama administration directive which prohibited states from refusing to send federal funds to qualified providers. This new division, new rule, and new directive serve to ensure the already-existing rights of physicians, nurses, and healthcare staff at the expense of their patients.

The Conscience and Religious Freedom Division

The Conscience and Religious Freedom Division was started in January of 2018 as a part of the Office of Civil Rights (OCR). Roger Severino, Director of the OCR, has said the creation of this division was a result of President Trump’s May 4, 2017 Executive Order.  This Executive Order states that all departments and agencies “shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.”

The Conscience and Religious Freedom Division will enforce existing federal laws, such as the 1990s Snow-Coates Amendment, the 1970s Church Amendment, and the Weldon amendment. In an interview with NPR, Severino refers to the laws protecting a practitioner’s rights to exercise their religious beliefs at work “anti-discrimination” laws, but critics argue that the creation of this division will increase discrimination by allowing healthcare providers to deny care based on the patient’s needs or identity.

The New Rule

In addition to the new division of OCR, HHS has proposed a new rule in relation to conscience protections. The rule proposed by HHS “revise[s] regulations previously promulgated to ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate, in violation of such Federal laws.” In other words, the rule iterates the standard for individuals to consciously object to providing healthcare to patients due to their personal beliefs. It also authorizes the Conscience and Religious Freedom Division to initiate compliance reviews and conduct investigations of providers receiving federal funds. OCR would review complaints made by healthcare workers under existing statutes that permit them to opt out of medical procedures to which they are morally opposed.

Additionally, the rule permits HHS to require “certain recipients [of federal funds] to maintain records; cooperate with OCR’s investigations, reviews, or other enforcement actions; submit written assurances and certifications of compliance to [HHS]; and provide notice to individuals and entities about their conscience and associated anti-discrimination rights, as applicable.” This means providers who receive federal funding through programs such as Medicare or Medicaid will be required to complete additional reporting about their compliance with religious protections. Providers will also be required to inform medical staff about their religious freedoms and anti-discrimination rights.

This does not include any duty of the provider or the medical personnel to inform patients that certain treatment options may be denied to them due to a provider or a medical professional’s personal beliefs.

Approximately 745,000 hospitals, doctors’ offices and nonprofits will be affected by the new rule. These providers will be required to update their employee manuals and job applications to reflect the new religious protections. HHS estimates that implementation of the new rule will cost $312.3 million in the first year and $125.5 million in the following four years. Healthcare professionals, including providers who receive taxpayer funding, will be permitted to refuse to care for patients seeking contraception, abortion, or gender reassignment surgery due to religious objections.

The rule offers no significant new protections to healthcare practitioners with religious and moral objections to certain treatments. In fact, there are several federal healthcare provider conscience protection statutes already in existence, dating back to the 1970s.

This new regulation also includes no patient protections. For example, physicians who object to certain treatments have no duty to refer patients to other sources of care. Providers are not required to disclose to patients when they refuse to perform certain types of treatments. In the past, Doctors have used these protections to refuse to treat lesbian, gay, and transgender patients. Pharmacists have used these protections to refuse to provide contraception to unmarried women and emergency contraception pills altogether. Without protections or even notifications to the patient, it seems clear this behavior will continue.

State Medicaid Directors Letter #16-005

In addition, the Trump administration recently sent State Medicaid Directors (SMD) letter #18-003, which rescinded the Obama-era SMD letter #16-005. Letter #16-005 prohibited states from denying Medicaid funding to qualified providers where abortions were provided among other services. The Obama administration sent this letter in the wake of some states refusing to provide Medicaid funding to Planned Parenthood. Letter #18-003 rescinds this directive, permitting states to discriminate among healthcare providers. Now, states will be permitted to deny Medicaid funding to providers who offer abortion services to low-income patients.

Harm to Patients

The new division, rule, and directive combined promise a significant shift in the landscape of American health care delivery. With the rights of physicians, nurses, and healthcare staff already enshrined in law, these “protections” seem more like negligible gains at the expense of their patients. Providers may also find themselves losing under this new regime. Upon graduation from medical school, most doctors take an oath not to permit “considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient.” These religious protections run the risk of diluting a healthcare professional’s duty to his or her patients.

Additionally, these religious protections potentially conflict with a physician’s duty to obtain a patient’s informed consent. Informed consent requires physicians to “provide information and help patients understand their medical condition and options for treatment.” Informed consent is based upon the notion that “withholding information without the patient’s knowledge or consent is ethically unacceptable.” This raises the question of whether physicians who do not inform patients of all their treatment options, due to moral objections, have violated their duty to obtain informed consent.

Providers must begin to weigh their conviction against sincere medical need, and determine whether the permitted protections are worth the risk to patients. Regulators in the Trump administration should consider the needs of patients seeking comprehensive healthcare from providers who are willing to deliver that care.