Welcome News: HHS Proposes Rule Restoring Doctors’ Conscience Rights

A proposed new rule from a federal agency will guarantee freedoms of conscience and religion to healthcare professionals that were nearly stripped from them by the previous Administration. That’s welcome news.

Obamacare is the law that almost did more damage to freedom of conscience than to healthcare costs (See Hobby Lobby and Little Sisters of the Poor). Not only weren’t Americans, for the most part, able to keep their chosen doctor, but the doctors they were able to see were almost stripped of their right to refuse to perform objectionable procedures or treat certain conditions against their conscience and best medical judgment.

The U.S. Department of Health and Human Services (HHS) is the primary federal agency charged with administering and enforcing federal healthcare laws. When Obamacare was signed into law in 2010, HHS first set out to restrict conscience objections with regard to contraceptives. In 2016, it took it upon itself to redefine terms in the law such as “sex” (in section 1557) to include “gender identity” and “termination of pregnancy,” the latter term being a euphemism for abortion.

Hold on. Does that seem odd to you?

Does a federal agency have the constitutional right to redefine specific and unambiguous terms used by Congress in enacting a federal law? If Congress meant for the female sex to include biological males who think they are women, or to include abortion, shouldn’t that have been made clear in the law it passed? Clearly these questions invoke important constitutional questions over the separation of powers and the checks and balances at the federal level.

Government agency officials aren’t elected, aren’t accountable to the people, and politicians are too often willing to let an agency “take the heat” for controversial actions they themselves would be at risk, electorally speaking, for taking. 

When the Obama-era HHS took it upon itself to redefine “sex” to include gender identity and abortion, the resulting lawsuits were predictable. In 2016, five states and three private healthcare providers sued HHS in a Texas federal court. Two more lawsuits were initiated in a North Dakota federal court.

In December 2016, the Texas judge hearing the multi-state suit issued a nationwide injunction preventing the HHS rule from taking effect. In a nutshell, the judge found that the Obama-era HHS rules violated other federal laws such as Title IX and the Religious Freedom Restoration Act, and exceeded HHS’s own rule-making authority.

The North Dakota judge later agreed with the Texas ruling and applied its reasoning in favor of the plaintiffs in those cases.

Now the Trump Administration’s HHS has proposed a rule that retains all of the nondiscrimination provisions and terms contained in the Obamacare statute itself, while doing away with the redefinitions of “sex,” which the Texas and North Dakota federal courts ruled is unlawful.

According to Roger Severino, the Director of the HHS Office for Civil Rights, “When Congress prohibited sex discrimination, it did so according to the plain meaning of the term and we are making our regulations conform. The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.”

The public has been invited to comment on the proposed rule during the 60-day period commencing on the date it is published in the Federal Register, which should be soon.