Proposed HHS rule would overturn Obama era mandates on abortion

By Dave Andrusko

Last Friday the Department of Health and Human Services issued a proposed rule that would amend Obama-era regulations related to Section 1557 of the Affordable Care Act (ACA).

There are many components outside our purview. What matters to single-issue pro-life organizations such as NRLC is that the proposed HHS rule would clarify that Section 1557 shall not force a recipient of federal funding to provide or pay for an abortion. In other words, the proposed rule makes perfectly clear what the Obama administration was determined to muddle–that the federal definition of sex discrimination in the ACA does not include abortion.

Section 1557 of the ACA prohibits a health program from discriminating, among other things, on the basis of sex. The definition of “sex” refers to Title IX of the Educational Amendments of 1972.

The Obama Administration issued regulations implementing this rule. When it did, it defined “discrimination on the basis of sex” to include abortion (“termination of pregnancy”).

The implication was clear: health care entities that participate in federal health programs must provide abortion. This mandate contradicted longstanding pro-life provisions such as the Hyde Amendment, the Weldon Amendment, the Church Amendment, and the Coats-Snowe Amendment, not to mention the First Amendment.

A portion of the proposed rule adds the abortion exemption language included in the text of Title IX.

Put another way, the proposed rule reinstates what was the clear understanding—that it is not “discrimination on the basis of sex” for an individual doctor or a facility to refuse to abort. The Trump administration simply intends to enforce the law as written.

“The announcement came after Obama’s rule had been challenged in separate lawsuits for departing from the text of Title IX’s definition of sex discrimination,” writes the Washington Examiner’s Bill McMorris . “Two federal courts have enjoined that rule from taking effect because they were ‘likely unlawful,’ according to HHS. The department pointed to the litigation as further evidence that President Obama had exceeded his authority. It said the proposal would “properly give effect to religious liberty and conscience protections” over the issue of abortion.”

The proposed HHS rule is open to public comment for 60 days after having been published in the Federal Register last Friday.