What happened with the HHS rule and conscience provisions in New York?
By / Nov 8

On Nov. 6,  in the U.S. District Court for the Southern District of New York, Judge Paul Engelmayer struck down an HHS rule titled, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.” The HHS rule provided conscience protections for medical professionals that object to performing procedures or writing prescriptions that violate their sincerely held moral or religious beliefs. For example, the HHS rule seeks to ensure that medical professionals who object on moral or religious grounds to performing abortions are protected from professional retaliation, as happened recently in Vermont. The plaintiffs in the consolidated cases represented before the district court argued that the HHS rule was discriminatory and restricted medical care in an unconstitutional manner.

In his 147-page opinion on the case, Engelmayer takes aim at the “conscience provisions” in the HHS rule. In particular, he cites section 706(2)(A) of the Administrative Procedure Act, which instructs courts to “invalidate any agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In this case, the agency is HHS and the action is the implementation of a rule that the court does not believe that HHS has the authority to make. 

Engelmayer makes this clear in his opinion, writing, “For purposes of these Conscience Provisions, HHS lacked the authority to define the statutory terms addressed by the Rule (“discriminate or discrimination,” “assist in the performance,” “health care entity,” and “referral or refer for”) or to promulgate the assurance and certification requirements, as each of these was an act of substantive rulemaking.” The opinion goes further, claiming that the HHS rule “conflicts with Title VII of the Civil Rights Act of 1964, as amended in 1972 to prescribe a framework governing the circumstances under which an employer must accommodate an employee’s religion-based objections; and (2) in its application to emergencies, it conflicts with the 1986 Emergency Medical Treatment and Labor Act.” 

Essentially, the U.S. District Court for the Southern District of New York believes that the HHS rule was promulgated in an unjustifiable manner that violated the Administrative Procedure Acts, the Civil Rights Act, and the Emergency Medical Treatment and Labor Act, while purportedly ignoring the U.S. Constitution’s article on the Separation of Powers and the Spending Clause. The result of Engelmayer’s decision vacates the HHS rule in its entirety. 

Christians must not be indifferent to matters regarding freedom of conscience because the conscience belongs to God alone.

When the rule was originally introduced, Roger Severino, the director of the HHS’s Office for Civil Rights, argued that “this rule ensures that healthcare entities and professionals won't be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life.” Others like Dr. Regina Frost, who practices medicine in New York and leads a “network of female healthcare professionals called Women Physicians in Christ,” welcomed the HHS rule, which aimed to protect doctors in states that refused to comply with the HHS rule. 

With the rule vacated and HHS’ next legal steps pending, doctors in states that sued HHS are now at risk for obeying their consciences. Engelmayer’s decision, which claims to strike down the HHS rule partially because of it being discriminatory, has now discriminated against the medical professionals who cannot, for moral or religious reasons, perform abortions or gender-reassignment surgeries. 

While the decision to not protect the consciences of medical professionals will almost certainly be appealed or reassessed by HHS, Engelmayer’s vacating of the conscience provisions rule is a devastating blow to providers and patients alike.

HHS did not rule that no medical professionals were allowed to provide certain procedures, but rather that the freedom to abstain from such procedures in light of their constitutional rights under the First Amendment should be honored. People of faith in the medical community should not be forced to choose between their religious beliefs and providing appropriate care to their patients. Christians must not be indifferent to matters regarding freedom of conscience because the conscience belongs to God alone.

ERLC’s Russell Moore comments on HHS announcement to form Conscience and Religious Freedom Division for Civil Rights
By / Jan 18

WASHINGTON, D.C, Jan. 18, 2018—Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, commented on today’s HHS Announcement to form a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights.

“Health care professionals do not put their consciences in a blind trust when they pursue medical training. The Department of Health and Human Services’ announcement of this new office to safeguard conscience protection is a welcome and positive move. I am thankful that HHS recognizes how imperiled conscience rights have been in recent years in this arena and is actively working and leading to turn the tide in the other direction. Healthcare professionals should be freed up to care for the bodies and minds of their patients not tied up by having their own consciences bound.”

The Conscience and Religious Freedom Division has been established to restore federal enforcement of the nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.

The announcement took place at an event at HHS headquarters from 10:30-noon ET.

The Southern Baptist Convention is America’s largest Protestant denomination with more than 15.2 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

Needed pro-life protections in potential healthcare legislation
By / Jul 10

The right approach to healthcare policy is a matter on which reasonable people can disagree and is an issue that falls outside the ERLC’s mandate and charge as an organization. But while Southern Baptists hold a variety of views about healthcare policy, including the appropriate role of government, we are nevertheless united in advocating for healthcare policies which affirm human dignity and affirm the ways that Christians and people of conscience have contributed to the practice of medicine in the United States.

Accordingly, we believe any healthcare legislation considered by the Congress must do three things: redirect government funds from Planned Parenthood, ensure that no taxpayer funding is used for abortion services, and protect the consciences of medical professionals who may be otherwise required to act against their moral convictions in the course of their jobs.

Congress is currently considering a major overhaul of the Affordable Care Act; whatever comes from the Senate negotiations and the conference discussions, the ERLC maintains three priorities:

1. Defund Planned Parenthood and Redirect Funds to FQHCs

Planned Parenthood is the largest abortion provider in the United States. Investigative journalism has demonstrated that Planned Parenthood sells the body parts of aborted babies to research facilities and works to expand the market for baby parts. In spite of this, Planned Parenthood receives almost a half billion dollars in taxpayer money every year. Since government funding makes up 40 percent of Planned Parenthood’s revenue each year, ending this government funding has been a longstanding pro-life goal.

Planned Parenthood targets underprivileged areas for its abortion and contraception services, and provides other incidental medical services. However, Federally Qualified Health Centers provide a much wider range of health services and much broader geographic coverage. FQHCs also differ from Planned Parenthood in that they do not provide abortion service. Redirecting money to FQHCs would allow women to continue receive the health care they need, even with a reduced number of Planned Parenthood facilities.

2. Ensure no taxpayer funding goes to abortion services

Abortion is not healthcare. As such, taxpayer money designated for healthcare should never be used to pay for abortion services. Whatever changes may be made to existing healthcare laws, Congress should ensure that no tax credits, subsidies, or other sources of federal funding may be used for abortion services.

Since 1976, taxpayer funds have been protected from funding abortion in large part by what is now called the Hyde Amendment. In the aftermath of Roe v. Wade, the Hyde Amendment was introduced to prevent taxpayer dollars from being spent on abortion. Since its enactment, Congress has passed the amendment as an appropriations rider that expires each year. The No Taxpayer Funding for Abortion Act would codify the Hyde Amendment and make it permanent by prohibiting federal funds from being expended for abortion or health insurance that includes coverage for elective abortions.

3. Protect the consciences of medical professionals

Pro-life healthcare professionals should have the right to administer care in accordance with their consciences. No healthcare worker should be forced to participate in abortions or other medical procedures that conflict with their religiously informed conscience. To protect this right, the Conscience Protection Act would give healthcare professionals the ability to defend themselves in court when states infringe their conscience rights, as is already happening in California and New York.

Conclusion

In this current political moment, there is pro-life leadership in both houses of Congress and in the White House. Indeed, the 2016 Republican Party Platform made multiple commitments to a pro-life ethic connected to their promises to reform American healthcare. Among them:

“We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare . . . We will not fund or subsidize healthcare that includes abortion coverage.”

The pro-life community anticipates and expects any health care reform bill to be fully pro-life. As the ERLC works with the House and Senate through this effort to reform the American healthcare system, we commend House and Senate leadership for their efforts to deliver legislation that fully reflects a pro-life ethic.

Why religious liberty matters for health care: HHS’s leaked rule
By / Jul 7

After the passage of the Affordable Care Act, the Department of Health and Human Services (HHS) mandated that all health insurance plans for most employers provide coverage for all FDA-approved contraceptives, abortion causing drugs, and sterilization procedures. HHS exempted certain grandfathered plans and a narrowly defined group of houses of worship. But this exemption did not include many other religious organizations, faith-based nonprofits, and other employers who hold religious and moral objections to providing contraceptives, abortifacients, and sterilization procedures.

In response to this rule, dozens of faith-based organizations—including several Southern Baptist organizations and entities—sued the Obama administration, asserting their religious liberty rights under the U.S. Constitution. This litigation dragged on for over five years during the Obama administration, during which time the Obama administration suffered a string of defeats in the federal courts, including at the Supreme Court.

However, a bright spot emerged when a draft rule prepared by HHS was leaked to the media. This new rule would provide a robust religious liberty exemption to those organizations and employers who have sincerely held religious and moral objections to participating in what they believe to be a great moral wrong. The rule is not yet final; it appears that the rule may have been leaked during interagency review in an effort to undermine it. This interagency review is still ongoing.

But if this rule is finalized with substantially the same policy as the leaked rule, it will be an important step toward restoring a proper policy balance between health care policy and religious liberty. It will also be an important step toward bringing the litigation involving the HHS mandate to a conclusion.

Here are four things you need to know about HHS’s new draft rule.

1. What does the rule do, and who would be exempt?

The draft rule maintains the general contraceptive mandate but expands the exemptions to include organizations with religious or moral objections to contraceptives. Organizations would have three options: comply with the mandate, participate in the optional accommodation process, or utilize the newly-expanded exemption.

2. Why are people of faith concerned about the contraceptive mandate?

Some of the contraceptives employers must provide under the HHS mandate are designed to cause abortion. Most of the organizations who have objected to the HHS mandate have religious or moral objections to abortion or the use of contraception in general.

Even Americans who don’t oppose contraception recognize the mandate is a breach of the constitutionally guaranteed free exercise of religion. Abortion is a deeply divisive issue in the United States, and American policy has in general struck a balance between religious freedom and matters of conscience and the rights created by Roe v. Wade.

3. Why is HHS proposing this religious liberty exemption?

The Supreme Court held that HHS’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA). Part of the reason why HHS is proposing this rule is because it was ordered to do so by the Court. But the policy behind this rule and HHS’s rationale for proposing this new rule is to restore religious liberty where that liberty had been taken by the previous Administration.

Many of the parties who have objected to the contraceptive mandate serve the poorest of the poor. This religious liberty exemption will free these organizations to serve and carry out their mission without interference from the federal government.

4. Will the HHS’s new rule decrease access to contraceptives?

No. There are already many opportunities for women to receive contraceptive coverage, including from government sources. The Obama administration conceded this point before the Supreme Court in 2016 (Zubick v. Burwell). Americans have broad access to contraception without forcing conscientious objectors to participate in what they believe is a moral wrong.

Fundamentally, the government could create a program that directly provides insurance coverage for contraception or free contraception for all women. The problem with the HHS mandate is that it infringes religious freedom in order to pay for it.

Employers have no economic incentive to claim a religious exemption. Nearly all employers still must provide contraceptive coverage, and insurance companies are not permitted to charge more for insurance plans that include the coverage. Consequently, organizations and employers that do not object to contraceptives for sincere religious or moral convictions do not have incentive to drop contraception coverage.  

We are very encouraged by this rule and the administration’s leadership in restoring religious liberty protections within this complex health care debate. We look forward to this rule becoming final and a final conclusion to the litigation over the HHS mandate.

New HHS rules still problematic for religious liberty
By / Aug 22

When a law is revised eight times, it’s worth asking whether or not it should ever have been enacted in the first place.

Today, the Department of Health and Human Services (HHS) issued a new rule regarding its requirement for certain faith-based non-profit organizations and closely held for-profits to provide abortion-causing drugs and devices to their employees through their health plans. This is the eighth revision to the Health and Human Services Mandate. And regrettably, the government still falls short of understanding the concerns surrounding religious liberty. We are pleased that HHS recognizes that they cannot force some of our nation’s faith community to violate their consciences on a matter as significant as life, but we are deeply disappointed that they still believe they should be the arbiters of the line between what constitutes protected religious activity and what does not.

This new regulation was drawn up partly in response to the Supreme Court’s decision protecting Hobby Lobby and other faith-based businesses from the HHS mandate to provide these items to their employees. The Administration also felt the new regulation was necessary because many faith-based organizations complained that they were being treated differently from other faith-based organizations in the application of the original regulation. These groups rightly complained that the administration had taken on itself the task of determining which faith-based groups qualified for exemption from the mandate, mostly “houses of worship.” All others were required to submit a form justifying their claim for exemption and authorizing the government to contact their insurer to arrange for the provision of these drugs and devices.

The new rule does little to change that dichotomy. All it does is move the line. Non-exempt faith-based organizations, i.e., just about everyone except “houses of worship,” will still be required to submit paperwork to the government declaring their religious claim of exemption. The government has resorted to shuffling paperwork, not ceasing its conscience-paving ways. The new rule no longer puts these organizations in the position of authorizing the government to contact their insurer to require the provision of these abortion and contraceptive items. But the result is the same. Upon notification by the organization, the government will take it on itself to notify the organization’s insurer and require provision of these items. In other words, if you do not meet the government’s classification as an “exempt” organization, your insurer will still be providing abortion and contraceptive services to your employees, regardless of your objection.

Essentially, the administration has set itself up as the grand inquisitor, determining who is religious enough to merit the government’s benevolence and who is not. The religious liberty violations that led to countless court cases, remains. Some of the non-favored organizations still affected by this rule have been providing faith-based ministry for more than 100 years. Their claims of faith-informed conscience objections are well established and deserve unqualified, unquestioned accommodation in the same way “houses of worship” receive them. If “houses of worship” and similar groups are exempted from having these items provided to their employees, these other groups should receive the same exemption. A second proposed rule stipulates the regulations for defining what constitutes a closely-held for-profit company, a move in response to the government’s loss in the Burwell v. Hobby Lobby Stores Inc., case earlier this summer.

The Administration’s new rule for the HHS Mandate has not alleviated our concerns about its disregard for religious freedom. The rule reveals the administration remains committed to advancing sexual liberty over First Amendment protected religious liberty. The rule still runs afoul of faith and conscience in the following ways:

● It empowers the government to decide whose faith-driven activity is religious enough to merit its exemption.

● It requires taxpayers to cover the cost of abortion-causing drugs and devices.

● It violates the administration’s commitment in the original passage of the ACA not to include abortion in its approved plans.

● It forces some faith-based organizations with clear conscience objections to choose between violating their consciences regarding abortion or contraception and government prosecution.

As Christians, we can respond in the following ways:

● Remember that God is aware. He has not abandoned His people.

● Pray that God will give understanding to those continuing to try to force people of faith to violate their consciences.

● Pray that God will help Congress respond in a way that will assure conscience protections.

● Call your congressman and senators and ask them to act on behalf of people of faith. You can get their contact information here.

● Write a letter to the editor of your local paper explaining why you oppose the new regulation.

● Contact the White House and express your opposition in a courteous but firm manner.

●Contact any ministries or businesses that you know are affected by the mandate and let them know you are praying for them.

● Pray that God will raise up the leaders our nation needs to restore legal protections for the unborn at any stage of life.

ERLC’s Russell Moore on HHS guidelines for non-profit organizations & for-profit corporations
By / Aug 22

WASHINGTON, D.C., August 22, 2014 Russell Moore, president of The Ethics & Religious Liberty Commission of the Southern Baptist Convention, responded to the new guidelines for non-profit religious organizations and closely held for-profit companies released today by the U.S. Department of Health and Human Services:

"Here we go again. What we see here is another revised attempt to settle issues of religious conscience with accounting maneuvers. This new policy doesn't get at the primary problem. The administration is setting itself up as a mediator between God and the conscience on the question of the taking of innocent human life.

When it comes to these contentious issues I don't necessarily expect those who disagree with us to ask 'What Would Jesus Do? But, in this case, asking What Would Jefferson Do? would be a good start.

The full rule has not been published yet, but it appears to retain the two-tier status for religious groups, with houses of worship exempted from the mandate, while other religious organizations and certain for-profits are required to notify the government they cannot comply. In addition, the government will continue to require insurers of non-exempted organizations to provide abortion and contraceptive drugs and devices to their employees.

A second proposed rule will stipulate the regulations for defining what constitutes a closely-held for-profit company, a move in response to the governments loss in the Burwell v. Hobby Lobby Stores Inc., case earlier this summer.

Todays guidelines mark the eighth time in three years that the HHS has revised its original mandate.

The Southern Baptist Convention is Americas largest Protestant denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBCs ethics, religious liberty and public policy entity with offices in Nashville, Tenn. and Washington, D.C.

– END –

To request an interview with Russell Moore

contact Elizabeth Bristow at (615) 782-8409

or by e-mail at [email protected]

Visit our Web site at www.erlc.com

Follow us on Twitter at @ERLCPressRoom