How A Republican Congress Can Protect Health-Care Workers From The Biggest Federal Erasure Of Their Conscience Rights Ever BY: ERIC COYKENDALL for The Federalist
Medical conscience concerns are too serious to be allowed to fluctuate according to the whims of the current presidential administration.
Thanks to the leaked opinion in the Dobbs case, abortion “rights” have become a hot topic on the left. But what about the rights of health care workers to refuse to abort babies? Or to refuse participation in other referrals or procedures (such as euthanasia or gender reassignment surgeries) to which they object on moral or religious grounds?
Under a proposed rule removal by the Biden administration’s Health and Human Services Department (HHS), health care workers will have little recourse if their medical school, employer, or state insists that they participate in procedures or referrals to which they object. The rule in question has been a political football for the last four presidential administrations, but the current action on the part of HHS is potentially more extreme than the actions taken by even the Obama administration, and it threatens to leave federal conscience protections — which are required by federal law—without enforcement.
If Republicans sweep the midterm elections in November, they should overturn this decision and force all future administrations to defend conscience rights for doctors and nurses.
Congress first established conscience protections for medical providers in the Health Programs Extension Act of 1973 — passed less than six months after the Supreme Court announced its opinion in Roe v. Wade — and has subsequently passed numerous similar provisions. The current protections are all tied to federal spending and effectively make it illegal for any health care providers receiving federal funds (which includes nearly all health care providers at this point) to require participation in or referrals for abortion or assisted suicide.
Using its spending power as a means of extending its control well beyond the limits of Article I of the Constitution is a common practice, but not one that affords Congress much direct control. In this case, Congress hasn’t even bothered to establish an enforcement mechanism. Health care providers receiving federal funds cannot require participation in an abortion, but if they do so in violation of law, the consequences are unspecified, as is the enforcing authority.
Trump and Biden Administrations’ Actions
The last several presidential administrations have written regulations intended to bring clarity to how federal conscience protections will be enforced, and to whom complaints should be made. In 2018 the Trump administration strengthened related regulations after an astronomic jump in the number of conscience cases filed with HHS, apparently as a result of an information campaign — ensuring that doctors and nurses were aware of their rights under law — and a sense that the Trump administration would actually enforce the law.