Tensions Flare on Abortion, Doctor Rights in HHS Conscience Plan

Abortion services and the obligations of medical professionals to provide them are coming under scrutiny in a Biden administration attempt to revise a Trump-era rule that critics say curtailed access for vulnerable populations.

The administration is moving to revise a Trump-era rule that allowed the Health and Human Services Department to strip funds from health-care facilities taking actions against workers who cite religious or moral objections to providing abortion services.

Health experts characterize the move as a balancing act between health-care worker and patient rights after the US Supreme Court stuck down Roe v. Wade and federal abortion rights in its Dobbs decision last summer.

“There’s a real tension, if not a conflict, between the religious freedoms of health-care workers on the one hand and the rights of patients on the other,” said Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University.

Critics say the Trump rule was a means for the former administration to target abortion and other services at odds with religious views while threatening health-care access for marginalized communities. Biden’s plan, Gostin said, gives the government “the added power to ensure that providers don’t use religion as a reason“ to deny services.

“With the overturning of Roe v. Wade, and Dobbs, it means that people’s right to abortion services are already narrowed and in some places virtually impossible to get,” Gostin said. “The Biden administration is trying to recalibrate the balance between the patient’s right to a full range of services without discrimination and the provider’s right not to be forced to do something they have a deep religious opposition to.”

Proponents of the Trump rule, however, say it gave teeth to rights for health-care workers to deny services on moral or religious grounds by providing an enforcement mechanism. Biden’s rule, they say, is an attempt to undermine the Supreme Court and the rights of medical professionals.

“The Biden administration has done everything in its power to massively resist the Dobbs decision and to impede the efforts of pro-life states to save those unborn lives,” said Roger Severino, President Donald Trump’s director of the HHS Office for Civil Rights in charge of issuing the prior administration rule.

“That’s what all of this is about,” said Severino, now a senior fellow at the Ethics and Public Policy Center. The Biden administration is trying “to placate its pro-abortion base after its stunning loss at the Supreme Court.”

‘Political Back and Forth’

In the HHS’s estimation, the new rule proposal would provide a method for strengthening protections for health providers with religious objections.

The agency in a December press release said the proposal would “restore the longstanding process for the handling of conscience complaints and provide additional safeguards to protect against conscience and religious discrimination.”

The new proposal marks the latest in a “political back and forth” on a rule launched by the Bush administration, said Lucinda Finley, a University at Buffalo law professor. The Obama administration later put forth its own version, followed by Trump.

Before making its tweaks, the Biden administration is asking the public whether the Trump rule would hinder access to sexual and reproductive services, and is addressing complaints of discrimination involving health-care entities not providing services for assisted suicide.

These requests, said Temple University Beasley School of Law Dean Rachel Rebouche, “certainly suggest they’re skeptical that the Trump rule did anything to protect providers’ rights,” and that it’s been “kind of a vehicle to cut against abortion care and other reproductive health care.”

“The fight that’s really about to happen is going to be over data—how many people, what happened,” Rebouche said. “It will then be a question of the Biden administration thinking about how you truly balance competing rights.”

Rebouche also noted that it will be “interesting to see how state legislatures react. Will they pass their own new revised and religious moral protections at the state level that seem to test the Biden administration’s power to revise the rules in this way?”

“It’s another chapter in the state-federal conflict that now characterizes reproductive health care,” she added.

Problem or Protection

Some stakeholders view the rule proposal as an attempt to curtail religious rights.

“While the proposed revision to the Conscience Rule will need time to digest, I am troubled by its implications that desire for abortion and other procedures can override rights of conscience,” Cardinal Timothy Dolan, chairman of the US Conference of Catholic Bishops’ Committee for Religious Liberty, said in a statement.

In the rule proposal, the HHS said “health care systems must effectively deliver services—including safe legal abortions—to all who need them in order to protect patients’ health and dignity.”

That statement, Severino said, “has no business” in a plan to protect conscience protections for doctors, and the idea the proposal would strengthen such protections is “an inversion of reality.”

In Severino’s view, the Biden administration has already “exerted its pressure on doctors to perform abortions,” pointing to a Veterans Affairs Department rule requiring its medical centers to offer abortion services. Severino also noted the administration’s claim that the Emergency Medical Treatment and Labor Act requires doctors to provide abortions in emergency situations.

Unlike the Trump rule, the Biden HHS proposal suggests the agency isn’t interested in terminating agency funding not in compliance, said Louis Brown, board member of the Catholic Health Care Leadership Alliance.

And while there are currently laws protecting religious objections to performing health procedures, Brown noted that “there is a legal axiom—where there is a law, there should be a remedy. And a law that isn’t enforced has limited impact.”

“This proposed rule suggests that HHS is making a decision to not faithfully enforce federal conscience laws that have been passed by partisan congresses for decades,” Brown said.