HHS guts Trump’s ‘conscience’ rule, drawing praise from LGBTQ legal groups

LGBTQ legal groups are applauding the Biden administration after the Department of Health and Human Services (HHS) finalized a proposed rule to partially rescind a Trump-era policy that would have allowed providers to deny care to patients on religious or moral grounds.

The Trump administration’s policy — which was broad enough to allow doctors, janitors, and others to refuse services even in emergency situations, according to Lambda Legal — was blocked years ago by the US District Court for the Southern District of New York, the US District Court for the Western District of Washington, and the US District Court for the Northern District of California, leaving it in limbo. The rule sparked widespread concern among providers who feared they would lose their federal funding if they did not allow workers to refuse services. Commenters expressed concern that the Trump administration’s rule would be used to deny access to reproductive health services, gender-affirming care, and other needs. 

The Biden administration updated the policy by keeping some of it and eliminating parts “that are redundant or confusing, that undermine the clarity of the statutes Congress enacted to both safeguard conscience rights and protect access to health care, or because significant questions have been raised as to their legality,” HHS said.

One of the Biden administration’s key revisions to the rule include scrapping definitions in the Trump-era rule that were targeted by federal courts. The US District Court for the Southern District of New York, for example, found that the 2019 rule’s definitions of “discrimination,” “assist in the performance,” “referral,” and “health care entity” overly broadened “the conscience statutes beyond the balance struck by Congress.”

HHS Secretary Xavier Becerra said the final rule would bolster conscience protections and advance health care without discriminating.

“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.”

“Some doctors, nurses, and hospitals, for example, object for religious or moral reasons to providing or referring for abortions or assisted suicide, among other procedures,” the final rule stated. “Respecting such objections honors liberty and human dignity. It also redounds to the benefit of the medical profession. Patients also have autonomy, rights, and moral and religious convictions. And they have health needs, sometimes urgent ones. Our health care systems must effectively deliver services to all who need them in order to protect patients’ health and dignity. The department maintains that this final rule appropriately addresses the concerns raised by commenters and three separate district courts about the 2019 Final Rule, and in particular, its definitions, and allows the department to faithfully apply each statute on a case-by-case basis.”

Lambda Legal chief legal officer Jennifer C. Pizer welcomed the administration’s announcement.

“We are grateful that HHS has removed from the books the prior rule’s explicit invitation to discriminate against pregnant people, anyone in need of gender-affirming medical care, and LGBTQ+ patients in general, regardless of their medical needs,” Pizer said in a written statement. “No patient — no matter their religion, sex, race, gender identity, or sexual orientation — should fear being denied the medical care they need based on other people’s religious beliefs.”

The National Center for Lesbian Rights (NCLR) also praised HHS after the agency released the final rule.

“The revised rule issued today 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,” NCLR federal policy director Julianna Gonen said in a written statement. “Given the continued prevalence of discrimination in health care faced by LGBTQ people, this new rule is a welcome development that will help protect our community.”

Alliance Defending Freedom (ADF), a conservative litigation group known for fighting against LGBTQ rights in high-profile cases around the country, criticized the rule and said “countless” doctors face threats to their livelihoods for asserting their conscience and religious rights.

“Patients are best served by medical practitioners who are free to act consistent with their oath to ‘do no harm,’” ADF senior counsel Matt Bowman said in a written statement. “Doctors, nurses, and other medical providers should enjoy this same constitutional protection, free to live and work in a manner consistent with their faith.”