HHS Rescinds Health Care Conscience Provisions

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HHS repeals “overly broad” portions of Bush-era regulation.

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The Department of Health and Human Services (HHS) recently rescinded or revised several provisions of a regulation implementing federal conscience statutes: the Church Amendments, Public Health Service Act 238n, and the Weldon Amendment. These statutes forbid discrimination against doctors who refuse to participate in abortion and sterilization procedures for moral or religious reasons.

The implementing regulation, promulgated in December 2008, consolidated enforcement powers within the HHS’s Office for Civil Rights, defined key terms within the conscience statutes, and required recipients of federal funds to certify their compliance with the statutes.

Critics of the implementing regulation, including 13 state attorneys-general, claimed that the regulations were too broad and could “jeopardize women’s access to all types of medical care, including basic birth control.”

In February, the HHS eliminated the certification requirement and the definitions section of the regulation, while preserving the portion of the regulation giving enforcement power of the the Office of Civil Rights.

In the days before HHS promulgated its new rule in February, forty-six House Representatives sent a letter to HHS Secretary Kathleen Sebelius expressing concern that by rescinding parts of the implementing regulation, the department would interrupt or stop enforcing the underlying conscience laws.

The HHS responded that the Obama Administration “strongly supports provider conscience laws,” and the department was only rescinding portions of the previous rule were “overly broad.”