By Michael Fragoso, Center for Human Life and Bioethics of the Family Research Council

On December 18^th, 2008, the Department of Health and Human Services promulgated regulations on the conscience rights of healthcare professionals.  While the regulations themselves are new, conscience protection of medical personnel at the federal level dates back to the time of Roe v. Wade in the form of the Church Amendments (42 U.S.C. 3001-7). Conscience rights are protected in two additional components of federal law: the Public Health Services Act §245 (42 U.S.C. 238n , also known as the “Coats Amendment”), and the Weldon Amendment 9 Consolidated Appropriations Act, 2008, Pub L. 110-161, §508(d), 121 Stat. 1844, 2209).  The regulations promulgated by HHS, entitled “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law” are an effort to provide a stronger regulatory context for the existing laws.

Though the Church Amendments date back to the 1970s, there has never been regulatory rule-making to determine just how the conscience protection provided by it and the other two conscience provisions are to work.

Much of the regulations define terms present in the legislation.  A shortcoming of the existing federal law is its ambiguous language-what is meant by “Health Care Entity”?  What is meant by “abortion?” The regulations go a long way in addressing those concerns: they define “assist in the performance” so as to include referral; they also define “health care entity” in a broad manner.  Nevertheless, the regulations do not define the term “abortion,” in effect leaving it up to the conscientious opinion of the healthcare provider whether or not an action constitutes an abortion-for example, destroying the embryo pre-implantation as is potentially the case with “the morning after pill.”

The regulations also protect medical personnel from discrimination on a number of conscience related grounds. Medical students and practicing physicians are protected from having, “(A) to undergo training in the performance of abortions, or to require, provide, refer for, or make arrangements for training in the performance of abortions; (B) to perform, refer for, or make other arrangements for, abortions; or (C) to refer for abortions…”

Students and physicians are protected from discrimination based on the sort of institution in which they received their training and cannot be subject to discrimination for having received their training at an institution “that does not or did not require attendees to perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training…”

Lastly, medical personnel cannot be subject to any discrimination pertaining to credentialing or licensing on grounds related to abortion.

The Regulations further mandate that the applicable institutions have to meet established certification standards for compliance.  This serves to make affected recipients (such as any state and local governments that receive funds through HHS, or any non-governmental entity that receives funds through HHS) better aware of their existing legal obligations to the conscience rights of medical professionals, as well as establishing a more robust regulatory mechanism for HHS to ensure that these rights are, in fact, being maintained.