Proponents say laws protecting freedom of conscience in healthcare have gone under-enforced, while critics worry this shift could open door to more discrimination against LGBTQ patients.
Lawmakers and faith leaders joined Health and Human Services officials Thursday morning to launch a new HHS division that aims to protect healthcare organizations and their employees from discrimination on the basis of religion.
The Conscience and Religious Freedom Division, within the HHS Office of Civil Rights (OCR), will ramp up enforcement of legal protections that went neglected under the Obama administration, proponents said. They cited cases in which healthcare workers were penalized for their objection to abortion.
“No nurse or doctor should lose her job, her livelihood, or her profession because of her faith,” Rep. Vicky Hartzler (R-Mo.), chair of the House Values Action Team, said during a series of speeches at HHS headquarters with fellow backers of the initiative.
Hartzler recalled the case of Cathy Cenzon-DeCarlo, a nurse at Mount Sinai Hospital in New York who sued after being forced to help perform a second-term abortion in 2009, as The Washington Post reported. Cenzon-DeCarlo filed an OCR complaint that was not addressed until 2013.
“Despite clearly communicating her moral objection to assisting with abortions as a nurse, Cathy’s employer coerced her to participate in an abortion procedure that took the life of a vulnerable unborn child,” Hartzler said Thursday, citing similar cases in Illinois and New Jersey.
The division’s work will be authorized by several existing statutes that make it illegal to discriminate against healthcare workers who refuse to participate in abortions, sterilization, or assisted suicide. These are included in the Church Amendments, the Public Health Service Act, the Weldon Amendment, and the Affordable Care Act.
“Enforcing these statutes, some of which have been on the books for decades and some of which have lain largely dormant, will expand and complement the already-excellent work that OCR does protecting all Americans’ civil rights,” said Acting HHS Secretary Eric D. Hargan, JD, who was sworn in as deputy secretary last October, shortly after the resignation of former HHS Secretary Tom Price, MD, amid controversy over travel spending.
The American Civil Liberties Union and other critics worry, however, that this shift could open the door to more discrimination against women and LGBTQ people in need of medical care.
American College of Physicians President Jack Ende, MD, MACP, said his organization will evaluate the new HHS division as it begins operating, measuring its actions against ACP's ethics manual and public policy positions.
"Those state that physicians have a professional obligation to not discriminate against any class of patients, but also that a physician may have a conscience objection to providing a specific medical service to a patient," Ende said in a statement.
Harper Jean Tobin, director of policy for the National Center for Transgender Equality, released a statement saying HHS “appears ready to create sweeping, dangerous exemptions to patient protections that would encourage doctors, hospitals, paramedics and other medical providers to pick and choose which patients they will and won’t treat, and who does and doesn’t get life-saving medical care.”
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As evidence, Tobin pointed to a recent controversy over an HHS request for information. The department received 10,729 comments on its proposal to reduce regulations for religious and faith-based groups, but it published only 80, as Politico reported. Those 80 comments largely supported the Trump administration’s anti-abortion policies and opposed Obama-era rules, such as the one that requires healthcare providers that accept federal money to serve transgender patients.
Roger Severino, director of the HHS OCR, was a staff member with The Heritage Foundation, where he coauthored a report that described the Obama administration’s proposal to prohibit differential treatment on the basis of gender identity as a threat to religious liberty and freedom of conscience for doctors and healthcare organizations.
A proposed rule pertaining to the HHS OCR, titled “Ensuring Compliance with Certain Statutory Provisions in Health Care; Delegations of Authority,” was still listed Thursday as pending review at the White House Office of Management and Budget.
This story has been updated to include a statement from the American College of Physicians.
Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.