Once again, the Trump Administration has taken action to protect the conscience rights of health care professionals. In this most recent effort, the Department of Health and Human Services (HHS) is seeking to ensure that medical professionals are not forced to perform procedures that would violate their convictions, including elective abortions.
In May 2016, the Obama Administration finalized rules for Section 1557 of the Affordable Care Act (ACA). This section specifically addressed discrimination in the implementation of the ACA by prohibiting discrimination based on race, color, national origin, sex, age, or disability. However, the rules generated controversy by expanding the definition of discrimination “based on sex” — including such terminology as “gender identity” and “termination of pregnancy.” The language from the Obama Administration would effectively require medical professionals to perform procedures, including abortions and referrals for abortion, even if doing so violates their consciences. Thankfully, the rule never went into effect because, in December 2016, a Texas federal judge issued a nationwide preliminary injunction against enforcing the rules.
Now, the Trump Administration has returned to Section 1557 of the ACA, finalizing new rules. These rules restore the traditional definition of discrimination “based on sex,” returning the definition’s consistency with how other federal agencies define the term, in part by removing “gender identity” and “termination of pregnancy.” The new rules were proposed in June 2019, and HHS finalized them last week. By finalizing these updated rules, HHS is protecting health care professionals from being forced to violate their deeply held convictions and preventing the medical community from being subjected to politically-motivated ideological changes through the rulemaking process.
The attempted inclusion of the “right to abortion” in the Obama Administration rules is unsurprising. Efforts to include abortion coverage, procedures, referrals, and funding are frequently made by the Left in both legislation and agency rules; similar attacks against preborn children were included in the Equal Rights Amendment, which attempted to invalidate Pro-Life state laws through embedding abortion in the Amendment’s language. But folded within Section 1557 of the ACA is a new and subtle attack against our health care professionals, placing them even further in the crosshairs of these issues.
These crucial battles taking place over bureaucratic policies highlight the need for Texas to have strong legislative protections of conscience for health care professionals. Federal agency rules can fluctuate in content and enforcement, contingent on the views of the current administration and the opinions of unelected bureaucrats. But state conscience protections established in Texas law would secure protection and enforcement independent of the whims of the federal government. Expanding conscience protections to incorporate all health care professionals and all elective health care services ensures that medical professionals can continue to skillfully practice their health care specialty while respecting the fact that they are still individuals with convictions.
But even while shielding the sincerely-held beliefs of medical professionals, we must continue to protect vulnerable patients from discrimination. While health care professionals should have the right not to provide a health care procedure to which they object, they should not have the right to discriminatorily refuse to treat a person. This differentiation between refusing a procedure and refusing a person is critical to guarding both patients’ rights and medical professionals’ beliefs. While the new HHS rules work towards striking the right balance, Texas must not rely on the federal government in this crucial area of social and medical contention. Instead, during the Regular Session of the 87th Texas Legislature, we must enact the protections all Texans need.