News and Notes: Regulating Healthcare Regulations

By George Francis Kane

The U.S. Department of Health and Human Services (HHS) and the Office for Civil Rights (OCR) are responsible to set regulations for medical institutions that secure both the rights of patients against discrimination and protections for acts of conscience by health care providers. The regulations must ensure compliance with standards for these protections that have been set by legislation, court rulings and executive orders.

These standards change over time, and so the regulations periodically require review and revision. The regulations establish the requirements that govern a significant issue of the separation of church and state, so it is useful to examine the contrasting positions taken by the Trump and Biden administrations.

The initial release of these regulations was in 2011 during the Obama administration. In 2019, during the Trump administration, the regulations were revised to bolster protections for health care providers who claim religious exemptions from anti-discrimination laws to deny certain reproductive services to women and gender-identity services to transgender patients. For example, the 2019 regulations permitted HHS to strip funding from health-care facilities that took disciplinary action against workers who claimed religious objections to providing certain reproductive-care procedures.

These regulations were never implemented because they were held up by three lawsuits, in the Southern District of New York, the Northern District of California and the Eastern District of Washington. The 2019 regulations were vacated in summary judgments in each of these cases because the rules protecting religiously based denial of care were too broad and would violate the right of some patients to appropriate medical care. This year’s revision corrects those problems by strengthening protections for patients against conscience-based denial of service and religious discrimination.

The contrast between the Trump and Biden regulations is particularly sharp in matters relating to abortion, since the Dobbs decision in 2022 intervened between the two. The Alliance Defending Freedom, a conservative legal group, criticized Biden for rescinding the rule cutting federal funding for health-care organizations that disciplined workers who claimed religious exemptions to providing certain reproductive services, calling it an attempt to reinstate through the back door a national right to abor
tion.

In March the FFRF announced breaking news in a long-running suit against another set of regulations covering federal social services, such as food and shelter, that are contracted out to church-related organizations. These regulations were first issued in 2016, as the Obama administration tried to accommodate the competing religious interests of the church organizations and their clients. but the suit concerns revisions by the Trump administration that took effect on January 19, 2021, one day before Trump left the White House!

This revision eliminated safeguards in the 2016 regulations that had protected the rights of the recipients of government aid from discrimination by the church-related organizations providing the services. The 2021 regulations allowed the service-providing organizations to require recipients to attend Bible study classes or other church-run programs. The service-providers were also not required to inform clients that their federally-funded services were also available from other providers. FFRF reports that “[t]he Trump administration’s rollback unlawfully put the interests of religious organizations, which provide a significant slice of federally funded social services, ahead of the rights and needs of the vulnerable populations they serve.”

The new development in the suit is that the Biden administration released a superseding set of regulations that appears to reverse the regulations that encouraged the church organizations to apply for exemptions to non-discrimination rules and to prod clients into religious participation. The plaintiff’s legal team, including FFRF, is studying the new regulations to see if they satisfy all of their complaints. If every issue is satisfactorily resolved they intend to drop the suit as moot.

If Trump wins the presidency in 2024, we can expect the Biden administration’s revisions of these two sets of regulations to be quickly withdrawn. Please refer to my column in the January 2024 issue for coverage of Project 2025, the Republican plan to weaponize federal agencies to rapidly enact their agenda to undermine the separation of church and state.