On January 5, 2023, the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) issued a notice of proposed rulemaking (“NPRM”) setting forth a proposed rule implementing various statutes that provide protections for health care providers and facilities who may have conscientious objections to certain forms of health care, such as abortion or physician-assisted death. As with all NPRMs issued as part of “notice and comment rulemaking,” there is an opportunity for any interested individual or entity to provide feedback on the proposed rule in the form of a “comment.” The NPRM begins by stating that the proposed rule partially rescinds the Trump-era rule, while retaining the prior regulatory framework and certain provisions of the Trump-era rule. The Trump-era rule had suffered in the courts when challenged in court and was judicially vacated prior to taking effect. Among the provisions of the Trump-era rule that drew the most criticism were those characterized as providing a conscience-based exemption to any duty to participate in any way in medical care, including referring patients to other providers for care, when the care relates to any program or activity to which the provider objects for religious or moral reasons. The breadth and vagueness of the language of the Trump-era rule’s conscience protections made it vulnerable to claims that it provided carte blanche to discriminate at will against LGBTQ individuals and women seeking abortions, among other issues.

In the NPRM, OCR proposes to retain the following Provisions of the 2019 Rule:

  • Inclusion of additional statutes related to rights of conscience not referenced by the pre-Trump rule.
  • OCR will be the agency that receives complaints and oversees investigations in accordance with a process set forth in the regulation.
  • OCR encourages the posting of notices of conscience rights on an entity’s website as well as in the place where other employment-related notices are posted. The extent to which such posting may become mandatory remains to be seen. This is one of the issues on which comment is explicitly invited.

Other provisions of the Trump-era rule are proposed to be rescinded to the extent that they differ from the regulatory framework in place prior to the Trump-era rule. This leaves in place broad legal prohibitions against discrimination based on “sex,” which after the Bostock case now appears to protect LGBTQ employees as well as pregnancy. The breadth and vagueness of this prohibition gives rise to the opposite concerns from those of the Trump-era rule, but certain clear rights of refusal are set forth in the statutes which the proposed rule implements.

Comments on the proposed rule are due March 6, 2023.