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The Biden administration’s Department of Health and Human Services (HHS) issued a final rule today on “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” This rule, unlike a 2019 HHS rule that protected the conscience rights of medical professionals, pushes rights of conscience to the side in favor of abortion and physician-assisted suicide.

Before HHS issued this final rule, we at AUL had filed a comment discussing conscience rights generally, then did a deep dive into assisted suicide conscientious objections.

In its final rule, HHS verbatim cited AUL’s comment, and then avoided addressing our point:

Comment:…A commenter stated that conscientious objections are from the perspective of the objector, meaning it is immaterial how a state defines the ‘practice’ of assisted suicide or whether it disagrees that abortion is a procedure that takes the life of a separate, unique, human being.

Response: Each of the conscience statutes contains particular requirements that must be met in order for them to apply to a given set of facts. The Department remains committed to faithfully applying each statute as drafted by Congress on a case-by-case basis.

AUL cited the 1981 case Thomas v. Review Board of the Indiana Employment Security Division at length after this statement because conscience protections are a matter of constitutional law. A congressional statute can’t usurp that constitutional holding, and it is well established in law that conscientious objections are from the perspective of the objector.

Several comments in the rule (including AUL’s) say that because there isn’t a private right of action for conscience rights, it is critical for HHS to protect them. HHS agreed, but then tried to say “this rule simplifies, and therefore strengthens” conscience protections, even as HHS removed critical conscience safeguards.

Several comments, including AUL’s, also pushed back against HHS saying it must “balance” conscience rights against healthcare access. HHS made a point of saying that Congress balanced these interests in the law, and that HHS is merely enforcing the statute. Yet, by establishing conscience protections in law, Congress has shown a clear preference for medical rights of conscience over ethically objectionable practices such as abortion and physician-assisted suicide. HHS does not have the authority to rebalance these interests.

Though federal law remains on the side of conscience rights, the Biden administration continues to favor the abortion industry over the conscientious objections of healthcare providers.

Though federal law remains on the side of conscience rights, the Biden administration continues to favor the abortion industry over the conscientious objections of healthcare providers.

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