By Jennifer Popik, JD, NRLC Legislative Director
This past Friday, the Trump Administration’s Department of Health and Human Services (HHS) finalized a rule relating to an Obamacare provision dealing with discrimination in healthcare. It represents a huge victory for pro-life health care providers.
When Obamacare was passed in 2010, it included a broad provision (1557) that generally prohibited health care entities from discriminating against patients based on race, national origin, disability, age, and sex.
In 2016 when the Obama Administration issued implementing regulations, it defined “discrimination on the basis of sex” to include abortion.
If this had taken effect, it would have forced health care entities receiving federal funding to provide or pay for an abortion.
This would have meant that any health care entity participating in federal health programs could have been booted out of the programs for failing to provide abortion for patients. This mandate stood in stark contrast to a broad array of conscience rights and federal protections including the Weldon Amendment, the Church Amendment, the Coats-Snowe Amendment, and namely, the Hyde Amendment.
“Health care is about saving life, and health care providers should never be forced or coerced into participating in abortion,” said Rep. Chris Smith (R-NJ). “A federal judge has already recognized that the previous rule under the Obama administration was an egregious violation of the conscience rights of health care providers. I am grateful that the new rule formally corrects this wrong and reaffirms the many conscience protections under existing law.”
The Obama Administration regulation never took effect. On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis the prior administration’s attempt to redefine sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. On October 15, 2019, the first federal court issued a final judgment, and vacated and remanded these provisions as unlawful; this final ruling is binding on HHS.
HHS will continue to enforce laws that prohibit discrimination. The change is that choosing not to perform or cover abortion will not constitute discrimination under Obamacare. HHS is simply aligning the court rulings with the current rules on discrimination.
The rule is scheduled to be published in the Federal Register on June 19, 2020. It is expected to go into effect 60 days later on August 18, 2020.