Key Takeaways:

• On Jan. 9, HHS finalized the Safeguarding the Rights of Conscience as Protected by Federal Statutes rule.
• The rule clarifies the process for enforcing federal conscience laws and strengthens protections against conscience and religious discrimination.

On Jan. 9, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) finalized a 2023 proposed rule titled “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (“Final Rule”). The Final Rule clarifies which federal conscience laws OCR enforces, details how OCR will enforce federal conscience laws, and encourages covered entities, such as grantees and providers, to voluntarily post a notice of rights to ensure compliance and educate the public about conscience statutes and rights. The Final Rule will become effective March 11.

Brief History

There are several provisions of federal law that protect the conscience rights of health care entities and providers. The Church Amendments, section 245 of the Public Health Service Act, the Weldon Amendment, and the Affordable Care Act prohibit HHS and recipients of HHS funds from discriminating against institutional and individual health care entities for their participation in, abstention from, or objection to certain medical procedures or services, including certain health services, or research activities funded in whole or in part by the federal government.

In 2008, HHS proposed a rule titled “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law.” The rule was finalized in 2009, with the exception of a certification requirement. However, a 2011 rule rescinded much of the 2008 rule.

In 2018, HHS issued a proposed rule titled “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” which proposed expansion of a 2008 final rule as well as reinstatement of several rescinded provisions of the same. The 2018 proposed rule added additional statutes and a detailed provision that would apply to alleged violations of any of the statutes covered by the rule. The proposed rule was finalized in 2019, reinstating and expanding upon the 2008 final rule provisions. Multiple courts found, however, that the rule was defective and therefore unlawful. HHS’s 2024 Final Rule partially rescinds the 2019 rule in an effort to “[advance] conscience protections, [and] access to health care, and [put] our health care system on notice that [OCR] will enforce the law.”

The full Final Rule can be read here.

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