Obama Administration to Reverse Provider Conscience Rule

As anticipated, the Obama administration has initiated steps to reverse the former administration’s midnight regulation governing health care providers. The Office of Management and Budget (OMB) announced today that it is reviewing a proposal to revoke the provider conscience rule. Once that process is complete, the proposal will be published in the Federal Register, followed by a 30-day public comment period.

Known as the “conscience” rule, the regulations issued by the Department of Health and Human Services (HHS) aimed to protect health care workers from discrimination if they harbored religious or moral objections to participating in reproductive health care services such as abortion and the provision of birth control. The rule expanded protections articulated in sections of three federal laws that safeguard an individual's right to refuse to provide the aforementioned health services if those services violated that person’s religious beliefs or moral convictions. The rule expanded the scope of those statutory protections to include institutional healthcare providers and individual employees who work for entities that receive certain HHS funds. Additionally, the rule mandates that recipients of HHS funds certify compliance at the risk of losing federal funding.

Objections to this rule have included the fact that the Equal Employment Opportunity Commission (EEOC) did not particulate in drafting the provider conscience regulations, even though the agency is charged with addressing religious discrimination in the workplace. It has also been argued that the rule could cause uncertainty as to what it means to discriminate against someone who has religious or moral objections to performing certain health services, and makes it unclear as to whether and what extent an employer would have to reasonably accommodate an employee’s religious objections. Additionally, many health care advocates have argued that the rule is too vague and could make it harder for women to obtain certain basic health care services.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.