On May 2, 2019 the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a controversial final rule, referred to as the “Conscience Rule.” If implemented, this rule would expand OCR’s enforcement authority over approximately two dozen existing laws shielding health care providers, individuals, and health care entities from having to provide, participate in, pay for, provide coverage of, or refer for certain services for which they have a religious, moral, or ethical objection. The Conscience Rule focuses on abortion, and also addresses sterilization, assisted suicide, and advanced directives.

Connecticut providers of these services will be particularly interested in the Conscience Rule’s enforcement of the Church Amendments, pursuant to which:

• An entity that receives funds for any health service or research activity under an HHS-administered program cannot require any individual to perform or assist in the performance of any part of a health service program funded by HHS if the individual’s performance or assistance would be contrary to his or her religious beliefs or moral convictions.
• An entity that receives federal funding under the Public Health Service Act (PHSA) is prohibited from discriminating in employment, promotion, or termination of employment, as well as extension of staff or other privileges, based on an individual declining to perform or assist in the performance of an abortion or sterilization because of his or her religious beliefs or moral convictions.
• An entity that receives certain federal funding under the PHSA or the Developmental Disabilities Act cannot deny admission to, or otherwise discriminate against, applicants for training or study (including applicants for internships and residencies) based on an applicant’s reluctance to counsel, suggest, recommend, assist or in any way participate in the performance of abortions or sterilizations contrary to the applicant’s religious beliefs or moral convictions.
• Note: The Conscience Rule defines “assist in the performance” broadly, to include non-medical staff (such as the scheduling of an abortion or preparing a room for an abortion).

As a condition of receiving HHS funding, every applicant would be required to file an assurance and certification of compliance with applicable federal conscience laws. The Conscience Rule provides OCR with the authority to receive complaints, investigate alleged violations and take appropriate enforcement action regarding noncompliance with the Conscience Rules. OCR’s newly created Conscience and Religious Freedom Division, for which additional funding has been requested, would be responsible for such enforcement.

The Conscience Rule faces significant opposition, and this past week, Democrats in the U.S. House of Representatives advanced a spending bill including language that would prohibit funds from being used to finalize, implement, or enforce the Conscience Rule. The Final Rule is scheduled to go into effect 60 days after it is published in the Federal Register.