Enforcing the Law: HHS Conscience and Religious Freedom Division
In January 2018, the U.S. Department of Health and Human Services (HHS) announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights.
The Hyde Amendment stipulates, “None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion.”
Civil Rights Act – Title VII
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
Public Health Service Act
Enacted in 1996, section 245, contained in 42 U.S.C. § 238n – PDF, prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity…
The Weldon Amendment
The Weldon Amendment was originally passed as part of the HHS appropriation and has been readopted (or incorporated by reference) in each subsequent HHS appropriations act since 2005.
The Affordable Care Act
The Affordable Care Act (Pub. L. No. 111-148 as amended by Pub. L. No. 111-152) includes new health care provider conscience protections within the health insurance Exchange program. Section 1303(b)(4) of the Act provides that “No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.”
The Church Amendments
The conscience provisions contained in 42 U.S.C. § 300a-7 et seq. – PDF, collectively known as the “Church Amendments,” were enacted in the 1970s to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions. This provision also extends protections to personnel decisions and prohibits any entity that receives a grant, contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating against any physician or other health care personnel in employment because the individual either performed, or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions.
Religious Freedom Restoration Act
In General. – Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Exception. – Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – Amendment One, United States Constitution