under the George W. Bush Administration
Comments from healthcare professionals on the need for the 2008 proposed rule
Freedom2Care's analysis of
the 2011 rule
Freedom2Care's comments on the 2019 proposed rule
under the Barack Obama Administration*
under the Donald Trump Administration*
*The 2019 conscience protection rule by the U.S. Department of Health and Human Services (HHS) is currently in litigation, though the 2011 rule remains in effect.
2019 Conscience Rule Litigation
HHS Office for Civil Rights
After the 2019 conscience rule was vacated, the HHS Office for Civil Rights announced it would "continue to receive and investigate complaints under its 2011 conscience rule."
Dr. Regina Frost
Federal Court Case
In December 2019, Freedom2Care / Christian Medical & Dental Associations (CMDA) announced our intention to appeal a New York federal court's ruling against the 2019 regulation with Becket.
Religious healthcare professionals like Dr. Regina Frost, an Ob/Gyn, care for all patients and are consistently on the frontlines serving the most vulnerable members of our society, including underserved poor and migrant communities; victims of gang violence, sex trafficking, opioid addiction and deadly epidemics; and prisoners living with HIV. In May 2019, HHS released a new conscience rule enforcing existing laws that allow religious healthcare professionals to continue their important work without having to perform certain procedures that would be inconsistent with their beliefs. Several states, including the state of New York, are now suing to block this rule and force Dr. Frost and others to either violate their conscience or end their practice. Becket is defending medical conscience rights for religious healthcare professionals nationwide so that they can continue their ministry providing compassionate care across the globe.
On June 25, 2019, Becket moved to intervene on behalf of Dr. Frost and CMDA in federal court, arguing that no healthcare professional should be forced to choose between violating her conscience or providing compassionate medical care. On November 6, 2019, a federal court ruled against the conscience rule, threatening the ability of religious doctors like Dr. Frost to serve communities without being forced to perform procedures against their beliefs. CMDA, Dr. Frost and HHS appealed to the Second Circuit, and filed their opening briefs on April 27, 2020.
In 2016, the U.S. Department of Health and Human Services (HHS) issued a rule under the Affordable Care Act that attempted to stretch the definition of sex discrimination beyond biology, to include a person's perception of gender. The rule subjected healthcare professionals to punishment if they declined on the basis of morality or medicine to participate in transgender procedures and prescriptions.
In 2019, HHS explained the rule that had been promulgated by the previous administration:
Although Congress prohibited discrimination on the basis of sex in 1972 (Title IX), and Section 1557
applied that law to healthcare and the Exchanges established under the ACA, HHS’s 2016 Section 1557
regulation redefined discrimination “on the basis of sex” to include gender identity and termination of pregnancy and defined gender identity as one’s internal sense of being “male, female, neither, or a combination of male and female" [emphasis added].
Our court case (Franciscan Alliance, Inc. et al. v. Burwell) challenged the gender portion of the rule. A federal court in 2016 issued a preliminary injunction that stopped implementation of that portion of the rule. In 2019, the court finally vacated (made void, annulled) the gender portion of the rule. (For more information, see our Court Cases page under Gender Rule cases.)
Text from HHS website:
On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place.
To comply with the court's decision, HHS issued a proposed rule in May 2019 to revise the 2016 rule regarding gender identity provisions.
Equal Treatment Regulation
White House Faith and Opportunity Initiative
In December 2020, HHS announced a joint final rule with eight other agencies—the Department of Justice, the Department of Homeland Security, the Department of Labor, the Department of Education, the Department of Housing and Urban Development, the Department of Agriculture, the Agency for International Development and the Department of Veterans Affairs—to implement President Trump’s Executive Order No. 13831, on the Establishment of a White House Faith and Opportunity Initiative. This rule ensures that faith-based and secular organizations are treated equally in HHS-supported programs, and it clarifies that faith-based organizations do not lose their legal protections and rights just because they participate in federal programs and activities.
“Faith-based organizations, Americans of faith, and civil society organizations play a vital role in providing Americans with access to healthcare and human services. This new rule reflects the commitment President Trump has upheld during his time in office to protect the religious freedom and conscience rights of all Americans, including those who receive support from federal programs to do their good work.”
—HHS Secretary Alex Azar
Title X Family Planning Rule
Affordable Care Act Contraceptives Mandate
Religious Freedom Protection Rule
In August 2019, the U.S. Department of Labor proposed a rule clarifying civil rights protections for religious organizations. This Notice of Proposed Rulemaking intended to clarify the civil rights protections afforded to religious organizations that contract with the federal government. The proposed rule ensures that conscience and religious freedom are given the broadest protection permitted by law.
Equal Treatment of Faith-based Education Institutions
In January 2020, U.S. Secretary of Education Betsy DeVos announced that the Department of Education is taking several concrete actions to protect religious liberty and ensure the Department is acting in accordance with the First Amendment. The Department announced a proposed rule ensuring the equal treatment and constitutional rights of religious organizations and faith-based institutions, as well as First Amendment freedoms owed to students on campus. As directed by Congress, the agency will also release updated guidance regarding constitutionally protected prayer in schools.