New HHS Rule Replaces Defunct Trump-Era Specter Haunting LGBTQIA+ and Reproductive Healthcare

The HHS recently replaced a dangerous rule on conscience rights for medical workers from 2019, with a New Final rule aiming to remove aspects of it that encouraged discrimination while streamlining the complaint process.

What are conscience rights?

Conscience rights are legal rights that permit health care workers to refuse to provide specific services for religious or moral reasons. While this usually only applies to practicing doctors and nurses, those participating in research, interns, applicants, and others are all protected as it comes to religious or personal moral convictions. A “Final Rule” passed in 2011, which spelled out these legal rights for health care workers, was considered, and intended to be, a comprehensive framework on conscience rights, and how they will be enforced.

In 2019, the Trump-Era U.S. Department of Health and Human Services posted a contentious addition to this preexisting rule. Criticized as being dangerous to marginalized communities, namely pregnant women, women of color, and LGBTQIA+ individuals, this revision seemingly emboldened health care workers to discriminate against those in need, especially based on their race, sex, ethnicity, sexuality, or gender. Moreover, the 2019 rule made it unclear as to where complaints of violations of conscience rights could be filed, garnering confusion and criticism from proponents of the law. While this revision was never put into effect on grounds that it was too broad in scope and too vague in wording, as Lambda Legal Chief Legal Officer Jennifer Pizer said, the 2019 rule “has loomed ominously over both health care providers and potential patients, representing the very real threat of blockages of medical care delivery when patients are most in need.”

The “New Final Rule”

Released in 2024, the “New Final Rule” seeks both to clarify the vague aspects of the old rule and limit its scope while still preventing discrimination against marginalized individuals. The rule removed aspects of the 2019 rule that seemed to invite health care workers to discriminate against patients, as well as removing such language that made it difficult to file claims, reverting largely to the policies set in place by the 2011 rule. The 2024 rule did notably retain some of the additive aspects of the 2019 rule, notable of which is a provision stating that organizations do not have to endorse a comprehensive approach to combating HIV/AIDS in order to receive funding (for example, perhaps a religious organization advocating for gay people not to have sex instead of supporting PrEP), and a provision ensuring that individuals do not have to receive medical care if it goes against their religion, so long as that care or lack thereof would not harm others. Because of these reasons, the new rule garnered support from both sides.

The “New Final Rule” also provides clarity on how to file complaints related to violations of conscience rights. Whereas before, victims of conscience rights violations would have to identify which branch of the HHS funded the organization said to have committed the violation—something most people do not know and would not be able to find out—all incoming complaints are now to be directed solely to the HHS’s Office of Civil Rights. Thus, the process is not only made more efficient, but made more intuitive for potentially affected individuals.

Does the rule do enough to protect marginalized communities?

While it is vitally important that everyone has the right to practice their religion as they so choose, the door is still open for health care workers to deny care to individuals due to characteristics such as gender or sexuality.

To quote the new rule, “The Federal health care conscience protection statutes represent

Congress’ attempt to strike a careful balance between maintaining access to health care on one hand and honoring religious beliefs and moral convictions on the other.” This choice of words notably puts the two in direct opposition to each other—a choice which is, painfully, true. A 2016 study found that around 70% of doctors in the U.S. were religious, and that 55% of total doctors said that their practice was influenced by their religious beliefs. While this study was completed eight years ago, the political climate regarding hot-button issues such as abortion and trans healthcare remains contentious. As the nation becomes more polarized, one can hardly expect the level of health care related discrimination related to race, sex, reproductive status, gender, or sexuality to go down.

While it is likely a benefit not to force doctors to do something they feel obligated not to do (and risk a failure or botching of the procedure), preventions must be put in place to prevent one’s perception of freedom from interfering with another’s right to life and health.

If you feel you have been discriminated against by a health care provider, you can file a complaint here, or contact Secular Coalition for AZ.

Josh Worthington, ASU intern