Thursday, May 2, 2019

Administration Releases Rules for Health Workers Conscientious Objections

On May 2, 2019, President Trump announced new rules from HHS regarding the strength of workers' rights to decline to provide health services that cross their religious beliefs.  The regulations cover both "individuals and entities."
  • NYT here.
  • Politico here.
  • CNN here.  
  • Health Affairs rapid analysis of the final rule, here.  MedPageToday here.
  • The 440-page rule, not yet in Federal Register, in a preview version at HHS.
    • Here.
    • The earlier proposed rule, 1/2018, is here. It received 72,000 comments.
  • City of San Francisco sues HHS, here, here.

In June 2016, the Obama administration released proposed rules that would (if enacted) specifically protect the rights of gay/LGBT persons receiving healthcare.   

Those 2016 proposed rules were apparently put on hold by the Trump administration and will expire, assuming they are non-finalized, in June.  See the HHS 2016-era proposal, here.  Access comments here.  

That earlier rule - CMS-3295-P - at 81 FR 39448, also proposed to require hospitals to have antibiotic stewardship committees, and that hasn't been finalized, either.  The antibiotic crisis has been in the news lately (here) and was discussed in April by PAC-CARB, the President's Advisory Commission on antibiotics (here).

In his autobiography, presidential candidate Pete Buttigieg raised concerns about an Indiana law that would have strengthened religious reasons for not providing services (healthcare or other), which he felt could have limited services to gay persons by some entities (e.g. see the Colorado gay cake case here).  The law existed for a few days in Indiana under then-Governor Pence.


On a personal note, since this HHS position pivots on religion, one should note that the Supreme Court has said that "no official...can prescribe what shall be orthodox in matters of...religion."  (WV Bd of Ed v Barnette, 1943; cited in Masterpiece Cakeshop, 2018).  While Masterpiece Cakeshop also stated that there remains "the delicate question of when freedom of religion must yield to an otherwise valid exercise of state power," it also quoted that under Barnette, the state can't include any judgment of what is a valid religion - maybe one person's personally-valid religion, which is not to be questioned, prohibits interracial marriage, for example.