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New HHS rule would violate conscience rights, foes say

Sarah Stierch, CC BY 4.0 , via Wikimedia Commons

WASHINGTON (BP) – A newly proposed rule by the Biden administration would violate the freedom of conscience of health care providers by requiring participation in gender-transition procedures and abortions, a Southern Baptist ethicist and other opponents say.

The Department of Health and Human Services (HHS) announced July 25 a proposed regulation that would bar discrimination on the basis of sex, which it says includes sexual orientation, gender identity and “pregnancy termination.” Sex is one of several categories protected from discrimination under a section of the 2010 Affordable Care Act implemented by the rule.

The regulation would force doctors, clinics and hospitals to perform and health-insurance companies to cover procedures to which they object, critics say. It also clarifies that the nondiscrimination requirements apply to services offered by telemedicine.

Jason Thacker of the Southern Baptist Ethics & Religious Liberty Commission (ERLC) told Baptist Press, “Christians fundamentally believe in the dignity and value of every human being as created in the image of God, and this reality should guide how medical providers care for their patients.

“No matter how quickly our society shifts on the fundamental issues of life and human sexuality, people of faith should not be forced to participate in or promote the myth that we can create our own realities outside of God’s good design for human sexuality and flourishing,” said Thacker, the ERLC’s chair of research in technology ethics and leader of its Research Institute.

The proposed HHS rule “not only perpetuates this myth of complete moral autonomy, but also disregards medical professionals’ duty to provide sound care and tramples on the deeply held religious beliefs of many by forcing them to participate in the practices of gender transitions and abortion,” he said.

Matt Bowman, senior counsel with Alliance Defending Freedom, said physicians “should never be forced to perform a controversial and often medically dangerous procedure that goes against their best judgment, their conscience, or their religious beliefs.”

The proposed rule is “an extreme violation of doctors’ and employers’ constitutional rights to conduct their work in a manner that is consistent with their religious beliefs and convictions,” he said.

The HHS proposal reverses a Trump administration policy and largely revives a 2016 rule by the Obama administration that became known as the “transgender mandate.” Two federal courts, however, have blocked enforcement of the Obama-era regulation, and the Biden administration has appealed both rulings.

Luke Goodrich, vice president and senior counsel of the religious liberty institute Becket, is hopeful courts will continue to protect the freedom of conscience breached by the rules of the Obama and Biden administrations.

“It’s long past time for this Administration to stop fighting against conscience, common sense, and sound medical judgment,” Goodrich said on Twitter after the new rule was announced. “And we expect the courts to agree – yet again.”

In a release announcing the proposed rule, HHS Secretary Xavier Becerra said, “Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”

Advocates for gay and transgender rights, as well as abortion rights, commended the HHS proposal.

Alexis McGill Johnson, president of Planned Parenthood Federation of America, said the rule “is particularly essential as attacks on people seeking abortions – as well as trans people – have significantly escalated in recent months.”

In announcing the proposed rule, HHS said it is consistent with the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County that ruled nondiscrimination protections in federal workplace law apply to gay and transgender employees.

The HHS proposal builds on its May 2021 announcement that it would interpret federal law banning sex discrimination to include discrimination on the basis of both sexual orientation and gender identity.

Sexual orientation includes homosexuality, bisexuality and pansexuality. In its May 2021 redefinition, HHS described gender identity as “an individual’s internal sense of gender, which may be male, female, neither or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”

The Trump administration had issued a rule in 2020 that rescinded the Obama-era policy by returning to the ordinary interpretation of the word “sex.”

The proposed HHS rule is the latest in a series of actions by the Biden administration during its 18 months in office to support abortion access and lesbian, gay, bisexual, transgender and queer rights. These include executive orders by President Biden regarding both matters.

A public comment period of 60 days will be open on the proposed regulation.