HHS: Patients May Not Mind Provider Conscience Rule, Even When Denied Services

This story has been updated.

As expected, HHS Thursday released a final rule implementing a change that would allow healthcare workers to refuse to provide certain services, such as reproductive healthcare, assisted suicide where it is legal, or place children with adoptive families if the parents are gay, lesbian, or transgender, if the service violates their religious or moral beliefs. At the same time, while HHS acknowledged that while some patients may experience some harms from a denial of care, it also proffered a different possibility of how patients could react: they may not mind.

“Some persons, out of respect for the beliefs of providers, may want a service but not take any offense, nor deem it any burden on themselves, for the provider to not provide that service to them,” a section deep in the 440-page document of the rule reads. “Some patients may even value the healthcare provider’s willingness to obey his or her conscience, because the patient feels that provider can be trusted to act with integrity in other matters as well. The Department does not believe it is appropriate to assume that all patients who want a particular service also want to force unwilling providers to provide it in violation of their consciences.”

Roger Severino, the director of the Office for Civil Rights (OCR) within HHS, advanced that point during a call with reporters explaining the rule, several hours after the president announced it in a Rose Garden ceremony for the National Day of Prayer.

“Patients often want doctors who match their values,” he suggested.

The wide-ranging rule, which reaches everything from Medicare, Medicare Advantage, global HIV prevention and treatment programs, pediatric vaccination programs, suicide prevention programs, nursing homes, and more, will take effect 60 days after it is published in the Federal Register. HHS said the rule replaces one from the Obama administration that was inadequate. Besides protecting workers as well as healthcare companies, it includes conscience protections regarding advance healthcare directives.

While nearly all of healthcare is affected, the rule is driven by those opposed to abortion, which is mentioned nearly as many times as the document is long.

In addition, it comes at a time when a measles outbreak, once thought eradicated in 2000, has resurfaced in the Northwest and parts of the East Coast, and as death by suicide has become a major health concern for teenagers.

The rule includes “exemptions from compulsory medical screening, examination, diagnosis, or treatment,” incorporating what it says are 4 provisions that “protect parents who, on the basis of conscience, object to their children being forced to receive certain treatments or health interventions.”

Severino became director of the HHS OCR in 2017, and launched a new Conscience and Religious Freedom Division last year. He said the final rule fulfills the administration’s promise to “promote and protect the fundamental and unalienable rights of conscience and religious liberty.”

The rule has enforcement mechanisms common in other civil rights laws, he said, and brings together 25 federal laws provisions passed by Congress protecting longstanding conscience rights in healthcare.

Allowing religious freedom “promotes diversity in healthcare,” Severino claimed, who said workers were being “bullied” for their beliefs. Asked to elaborate, he said there was an average of 1.25 complaints per year before the current president took office, and HHS has received 343 complaints in the last fiscal year.

Asked about the effect on patients who are primarily served by religious or Roman Catholic hospitals and who may not have other access to healthcare, Severino replied, “imagine if we lived in a world where they all shut down.” Pressed later on the subject of patient access at religious hospitals as well as rural hospitals, which are closing for financial reasons, he could not name a facility that was forced to close because of conflicts at the intersection of healthcare and religion.

In a statement, Families USA denounced the rule. “It would empower hospitals, nursing homes and health care workers to use a personal objection to block access to various types of care for women, children, LGBTQ people, and people nearing the end of their lives.”

“A patient should be able to access health care services free from judgment and discrimination,” said Frederick Isasi, Families USA executive director.

The American College of Obstetricians and Gynecologists (ACOG) and Physicians for Reproductive Health said they stand by a statement from last year, when the new office under Severino was created.

“Abortion, contraception and sterilization are a part of comprehensive reproductive health care and are essential to the health of patients. Professional medical organizations have clear guidance on the issue of refusal, noting that refusals of care must not compromise patient health.”

During the call with the media, Severino indicated the change would, for example, keep obstetricians and gynecologists from delivering care that conflicts with their beliefs. However, ACOG and others have noted that when it comes to abortion, training in medical school can be difficult to come by, and in religiously-affiliated school, the information on contraception could be “inadequate.”