In late 2018, I wrote a column about the Trump Administration’s federal regulation that allowed doctors, hospitals, and even hospital staff to impose THEIR own religious dogma on YOU, to deny you medical care in compliance with your personal beliefs and intentions[i]. The Trump-era regulation went into effect in May 2019 and was immediately challenged in court.
Here is a bit of good news. The U.S. Department of Health and Human Services has, under the Biden Administration, proposed an amendment to the Trump-era regulation[ii] to eliminate the illegal portions. The amendment will, for instance, rescind the “Denial of Care Rule” that allowed health care workers to deny medical treatments and medical services to a patient based on the worker’s personal religious or moral beliefs.
Under the Trump-era rule, hospitals and other health care facilities could losing federal funding unless they granted employees personal discretion to deny medical services to which the employee objected on religious or moral grounds. The proposed rescission will eliminate this threat to the facilities and to you as a patient.
The Trump-era rule caused various groups to file multiple lawsuits, claiming the Denial of Care Rule would violate their legal rights and would allow others to illegally discriminate against them using religion as a weapon. Three different federal courts ruled that the 2019 Trump-era Rule was unlawful.
The proposed Biden amendments will still protect care providers. Years ago, a federal law took effect requiring that “no individual shall be required to perform or assist in the performance of any part of a health care service program or research activity [federally funded in any way if participation] would be contrary to his religious beliefs or moral convictions.” Under the law, a physician whose personal beliefs or morals forbid participation in, say, death with dignity in a state where it is legal is not forced to participate.
Under the Trump-era Rule, the rights granted to care providers was made paramount. Under the Biden-era proposed amendment, there will be balance. Providers will still be able to opt out of any procedure, but they will no longer be able to use their religious or moral objection to forcibly deny the patient’s right to seek that procedure from a different provider.
As stated in the explanation of the proposed amendment, “Some doctors, nurses, and hospitals, for example, object for religious or moral reasons to providing or referring for abortions or assisted suicide, among other procedures. Respecting such objections honors liberty and human dignity … [but] Patients also have autonomy, rights, and moral and religious convictions. And they have health needs, sometimes urgent ones. Our health care systems must effectively deliver services … to all who need them in order to protect patients' health and dignity.”
If you want to submit a formal comment on the proposed amendment, whether positive or negative, you can do so until March 6, 2023 at this link: https://www.federalregister.gov/documents/2023/01/05/2022-28505/safeguarding-the-rights-of-conscience-as-protected-by-federal-statutes
Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.
Column published on February 8, 2023.