The U.S. Department of Health and Human Services (“DHHS”) recently took two steps to protect the conscience and religious freedom of health care workers.

First, it established a new division within its Office for Civil Rights (“OCR”) known as the Conscience and Religious Freedom Division.

The Conscience and Religious Freedom Division will enforce existing federal laws protecting health care workers from performing, assisting with, training for, or making referrals for health care procedures that are morally objectionable to the health professional. Typically these procedures involve abortion, sterilization, birth control, gender reassignment surgery, some end of life care, and assisted suicide, but the protection could also extend to other kinds of services.

Per the HHS announcement:

“Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.”

Second, almost immediately after announcing the establishment of this new Division, DHHS published a proposed rule confirming and expanding its enforcement authority to protect health professionals asserting conscience and religious freedom objections to performing, assisting with, training for, or making referrals for health procedures that they find morally objectionable. 83 FR 3880 (January 26, 2018). DHHS summarizes the proposed rule as follows:

“In the regulation of health care, the United States has a long history of providing conscience-based protections for individuals and entities with objections to certain activities based on religious belief and moral convictions. Multiple such statutory protections apply to the Department of Health and Human Services (HHS, or the Department) and the programs or activities it funds or administers. The Department proposes to revise regulations previously promulgated to ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate, in violation of such Federal laws. Through this rulemaking, the Department proposes to grant overall responsibility to its Office for Civil Rights (OCR) for ensuring that the Department, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with Federal laws protecting the rights of conscience and prohibiting associated discriminatory policies and practices in such programs and activities. In addition to conducting outreach and providing technical assistance, OCR will have 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 OCR’s 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 antidiscrimination rights, as applicable.”

DHHS will accept public comments until March 27, 2018. It is anticipated that DHHS will receive highly divergent comments from commenters who view the proposed rule as a needed protection for religious freedom versus those who view the proposed rule as a vehicle for promoting discrimination. Likely the pending U.S. Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission [S.Ct. 16-111] will affect this proposed rulemaking and/or the validity of the rule if it is enacted as proposed. In Masterpiece, a custom wedding cake baker/decorator in Colorado refused to make a cake for a same-sex couple, claiming that doing so would violate his religious beliefs against gay marriage. The case pits religious freedom against anti-discrimination laws and presents a direct parallel to the issues under consideration in the DHHS proposed rule.