Across the country, patients lack access to the health care they need. There are many causes, ranging from rural hospital closures to ideologically motivated attacks on abortion and transgender rights, to systemic racism dictating who can access high-quality, affordable, and timely health care. Federal regulations can either help or hinder this access to care, and one set of regulations that have an outsized effect are the so-called conscience rules. These rules enforce a variety of federal laws meant to balance patients’ rights to needed care and providers’ religious rights, and they are regularly revised when a presidential administration changes.
For example, the George W. Bush administration’s Department of Health and Human Services (HHS) issued broad regulations in 2008 allowing health providers and insurers to refuse to perform, refer, or pay for any service that violated a “religious belief or moral conviction.” The Obama administration rescinded this rule, as it was used by providers not to just decline to perform the services they disagree with, but to refuse care to patients they disapproved of, such as care for gay men with AIDS or providing in-vitro fertilization services to gay or single women.
In 2019, the Trump administration finalized a new version of this rule. The regulation explicitly made references to ways that providers could refuse to provide care to LGBT people, such as clarifying that providers would not be required to perform sterilization procedures that can be necessary to treat gender dysphoria. The Biden administration is now preparing to rescind that rule, which was never implemented after being blocked by federal courts. This commentary describes how this rescission would benefit patients by improving health equity and why a quick approval process is appropriate.
The Proposed Rule Would Protect Marginalized Patients from Discrimination
The Biden administration’s proposed rule revokes several of the most harmful portions of the Trump administration’s rule. For example, the proposed rule rescinds the definitions and purpose sections, which provided much of the potential for providers to discriminate against patients seeking needed health care. The proposed rule also reverses the Trump administration’s attempts to expand which types of entities could refuse to do their jobs by citing religious or moral exceptions. Rather than limiting this exemption to actual medical providers, the 2019 rule would have allowed a much broader set of workers to refuse—even those whose job is not actually providing care, such as appointment schedulers.
The Trump administration’s rule also specified that employers could not even ask applicants which services they would refuse to provide or facilitate as a result of their religious or moral beliefs. This could have resulted in a Planned Parenthood clinic hiring a staff member who would refuse to provide abortion care or schedule an appointment for transition care and being unable to fire or otherwise discipline them, reducing patient access even in states where this care has not been criminalized.
Part of the Biden administration’s justification for these rescissions is the Trump administration’s rule’s lack of legality: multiple federal courts found that the Trump administration overstepped its authority in issuing the law. More importantly, however, the Trump administration’s rule massively shifted the balance of provider and patient rights toward providers. Rather than working to ensure that patients can still access the health care they need, even if their provider morally or religiously opposes that care, the Trump administration prioritized providers’ opposition.
The Right Step for Ensuring Just and Equitable Coverage
The Biden administration’s proposed rule would officially rescind a set of regulations that have repeatedly been struck down by the federal court system, and its approach would help ensure that patients can continue to access the care they need, especially sexual and reproductive health care. This new rule is all the more critical after the precedent of the federal right to abortion in Roe v. Wade was struck down this past summer and as states move to restrict access to transition care.
The Biden administration should work quickly to finalize the rule after the comment period closes. Patients deserve access to providers who can and will support their health needs with compassion, not judgment, and this rule would undo the Trump administration’s efforts to prioritize religious exemptions over patient needs.