The Department of Health and Human Services (HHS) issued a final rule that aims to protect health care workers from discrimination if they harbor religious or moral objections to participating in reproductive health care services such as abortion and the provision of birth control. This rule expands protections articulated in sections of three federal laws (the so-called Church, Coats and Weldon Amendments) that safeguard an individual’s right to refuse to provide the aforementioned health services if those services violate that person’s religious beliefs or moral convictions. The proposed rule expands the scope of these statutory protections to include institutional health care providers and individual employees who work for entities that receive certain HHS funds. Additionally, the rule mandates that recipients of certain HHS funds certify compliance at the risk of losing federal funding.

Some members of Congress attempted to stall finalization of the conscience rule via legislation (S.20) and (H.R. 7310). Objections to the new rule include the fact that the Equal Employment Opportunity Commission (EEOC) did not participate in drafting the provider conscience regulation, even though this agency is charged with addressing religious discrimination in the workplace. In fact, in July of this year the EEOC drafted a new chapter on compliance with Title VII of the Civil Rights Act that offered employers guidance on how to balance their business needs with an employee’s religious beliefs. The new regulation, therefore, could cause uncertainty as to what it means to discriminate against someone who has religious or moral objections to performing certain health services, and makes it unclear as to whether and what extent an employer would have to reasonably accommodate an employee’s religious objections. Thus, health care employers could face conflicting interpretations of their obligations to accommodate an employee’s religious objections.

Despite the Bush Administration’s push for this “midnight” regulation, it is anticipated that President-elect Obama will likely seek to reverse the rule when he is sworn into office in January.