The Department of Health and Human Services made news last week when its Office for Civil Rights announced the creation of a new Conscience and Religious Freedom Division dedicated to protecting our first freedom.
The very next day, the department unveiled a proposed regulation to robustly enforce federal conscience statutes, and rescinded an Obama-era guidance letter that restricted state actions against family-planning providers that also provide abortion services.
The administration’s actions are an encouraging change in policy that demonstrate a robust respect for fundamental American principles.
For more than 40 years, federal law has protected the conscience rights of all Americans in the context of health care. These protections allow for the expression of a diversity of values in health care while ensuring that individuals and entities are not compelled to participate in practices that violate their sincere moral, ethical, or religious convictions.
When conscience violations and discrimination occur, it is critical that the administration respond by robustly enforcing federal law. This new Conscience and Religious Freedom Division will help ensure that health care professionals enjoy the same rights they have had for decades—to not face coercion or discriminatory actions if they decide not to participate in certain procedures such as abortion, sterilization, or assisted suicide because of moral or religious objections.
The regulation proposed by Health and Human Services will provide the new division with important enforcement tools to ensure that those who receive department funding fully comply with federal conscience protection statutes.
The proposal revises and expands on a similar regulation that was put in place during the George W. Bush administration, but was largely rescinded by President Barack Obama. Specifically, the proposal grants the Office of Civil Rights with the authority to:
initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints. In order to ensure that recipients of federal financial assistance and other department funds comply with their legal obligations, the department will require certain recipients to maintain records; cooperate with [the Office of Civil Rights’] investigations, reviews, or other enforcement actions; submit written assurances and certifications of compliance to the department; and provide notice to individuals and entities about their conscience and associated anti-discrimination rights, as applicable.
In addition to proposing the new conscience regulation, Health and Human Services took action to roll back an Obama-era administrative policy that potentially overstepped agency authority regarding family planning providers in state Medicaid programs.
The Centers for Medicare and Medicaid Services rescinded an Obama-era guidance that interpreted Medicaid’s “free choice of provider provision” to restrict states from excluding family-planning providers who also provide abortion from state-run Medicaid programs.
The “free choice of provider” provision, found in Section 1902(a)(23) of the Social Security Act, stipulates that Medicaid beneficiaries may obtain services “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required … who undertakes to provide … such services.” Via regulation, states are allowed to set “reasonable standards relating to the qualifications of providers.”
With numerous abortion providers being accused of fraud and abuse of Medicaid programs, states should be allowed to maintain the integrity of their programs and tailor them to best reflect state priorities.
Rescinding the letter does not mean that states can disallow abortion providers from participating in their Medicaid programs for any reason. States must still comply with statutory and regulatory requirements regarding qualification standards.
Rescinding the letter underscores the Trump administration’s concern that the Obama-era guidance “may have gone beyond merely interpreting what the statute and current regulations require” and restores “state flexibility to establish reasonable standards for their Medicaid programs.”
Altogether, last week’s administrative actions are excellent policy. In rolling back an overreaching Obama-era policy and committing to vigorously safeguard Americans’ rights of conscience, the Trump administration is continuing to uphold its obligation to protect fundamental rights and the rule of law.