March 6, 2023
Office for Civil Rights
Department of Health and Human Services
Hubert H. Humphrey Building, Room 509F
200 Independence Avenue, SW
Washington, D.C. 20201
Attention: Comments in Response to Proposed Partial Rescission – RIN 0945-AA18
Dear Secretary Becerra:
The National Women’s Law Center (“the Center”) is writing to comment on the Department of Health and Human Services’ (“the Department”) and the Office for Civil Rights’ (“OCR”) notice of proposed rulemaking, “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (“Proposed Rule”). Since 1972, the Center has worked to protect and advance the progress of women and their families in core aspects of their lives, including income security, employment, education, and reproductive rights and health, with an emphasis on the needs of low-income women and those who face multiple and intersecting forms of discrimination. To that end, the Center has long worked to end sex discrimination and to ensure all people have equal access to the full range of health care regardless of income, age, race, sex, sexual orientation, gender identity, ethnicity, geographic location, or type of insurance coverage. This includes the ability to access all forms of reproductive health care, including abortion, free from barriers and discrimination.
The Center broadly supports the Proposed Rule, which largely rescinds the unlawful rule finalized in 2019, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority” (“2019 Rule”). The 2019 Rule was illegal, wholly unnecessary, and emboldened discrimination. By making it easier for institutions and individuals to refuse to provide comprehensive health care, the 2019 Rule endangered the health and lives of women and lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people across the country. We appreciate that the Proposed Rule reverses several of the 2019 Rule’s most harmful provisions.
The Center further commends the Department’s decision to rescind many of the onerous and unlawful enforcement mechanisms of the 2019 Rule and leave in effect the framework created by the “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws” Rule (“2011 Final Rule”). Returning to the 2011 Rule will help address many of the serious concerns with the provisions of the 2019 Rule. However, the Center believes further clarification is needed regarding OCR’s enforcement authority, the process for handling complaints – specifically the potential involvement of state health agencies – and the scope of potential enforcement for entities found to be in violation of the Proposed Rule.
This comment letter focuses on areas of particular concern to the Center because of their impact on access to patient care, particularly abortion care. However, the Center commends the Department for issuing the Proposed Rule and encourages the Department to finalize the rule quickly.
I. Important Rescissions and Changes
The Center commends the Department for rescinding many of the provisions in the 2019 Rule, including § 88.2 Definitions.
The 2019 Rule purported to merely interpret existing refusal of care laws, including the Weldon Amendment, Church Amendments, and Coats-Snowe Amendment (hereafter “federal refusal of care laws”), and several others. Instead, it created broad exemptions that would have allowed health care providers and other individuals working in a health care setting receiving federal funds—from clinicians to receptionists to ambulance drivers—to deny patients basic health care services and information, including in emergencies. The 2019 Rule would have allowed such individuals to refrain from even informing patients about treatment options that they find objectionable—violating principles of medical ethics and informed consent—and to refrain from referring the patient to a medical professional who has no such objection to providing the patient with needed care. In addition, the 2019 Rule abandoned the long-standing balancing framework under Title VII of the Civil Rights Act of 1964 by requiring health care employers to provide absolute accommodation to individuals who refuse to provide certain information and services, including abortion, even when these services are a primary part of their job or in an emergency.
The 2019 Rule achieved all of this by broadly defining terms in the federal refusal of care laws, including “discrimination,” “assist in the performance,” “referral” or “refer for,” and “health care entity.” These definitions constituted a drastic and impermissible expansion of the federal refusal of care laws. As the preamble of the Proposed Rule notes, this expansion was declared unlawful by several federal courts.1
The expansion of the 2019 Rule was not only unlawful but dangerous. The 2019 Rule targeted those most likely to face refusals of care—those seeking reproductive health care, particularly
abortion care and miscarriage management, and LGBTQ individuals. Refusals of care force patients to delay or forgo necessary care, which can pose a threat not only to their health and future fertility, but also their lives.2 This is particularly true for patients with limited resources and options. For many patients, such refusals do not merely represent an inconvenience but can result in necessary or even emergent care being delayed or denied outright. These refusals are particularly dangerous in situations where individuals have limited options, such as in emergencies, when needing specialized services, in rural areas, or in areas where religiously- affiliated hospitals are the primary or sole hospital serving a community.3 These harms fall hardest on those already facing barriers to health care, including Black, Indigenous and other people of color, those struggling to make ends meet, and LGBTQ individuals.4
For these reasons, we appreciate the Proposed Rule’s recognition that “Our health care systems must effectively deliver services— including safe legal abortions—to all who need them in order to protect patients’ health and dignity” and express our strong support for rescinding these harmful provisions to further that goal.5
II. § 88.1 Purpose
The Department proposes to retain in the Proposed Rule mechanisms for enforcing several federal statutes that were first added in the 2019 Rule.6 Prior to the 2019 Rule, OCR asserted enforcement authority over three statutes only –the Weldon, Church, and Coats-Snowe Amendments. In 2019 OCR expanded this list to nearly 30 different provisions, including from the Affordable Care Act (“ACA”), Medicare, and Medicaid.7 This expansion wholly lacked justification. At that time the Department claimed that it was necessary to provide enforcement mechanisms to handle an alleged influx of complaints. However, this claim proved to be “demonstrably false” as the Department could not point to more than seven complaints.8 As several federal courts held, the utter lack of adequate justification rendered the 2019 Rule arbitrary and capricious.9 Yet, the Proposed Rule maintains OCR authority over the expanded list of provisions included in the 2019 Rule but once again fails to provide adequate justification.
III. § 88.2 Complaint handling and investigating
The 2019 Rule set forth an expansive enforcement scheme that imposed an arbitrary and burdensome investigation process on entities, threatened a drastic loss of funds in violation of the Spending Clause, and ultimately would have had an egregious impact on access to care. As a federal district court made clear, the 2019 Rule’s “extreme enforcement remedy exceed[ed] HHS’ statutory authority.”10 We appreciate the Proposed Rule’s many changes to the 2019 Rule’s unlawful and coercive enforcement scheme. While the Proposed Rule largely rescinds the most harmful enforcement provisions and “maintains the enforcement scheme from the 2011 rule,” the Center requests additional clarification to ensure the threat of enforcement does not have a chilling effect on entities that seek to protect patient access to care.
a. 88.2(a) and (b)
In § 88.2(a)(2), OCR is delegated the authority to “conduct investigations” on behalf of the Department’s enforcement of the federal refusal of care laws. The Center largely does not take issue with OCR’s process outlined in the Proposed Rule. However, we have questions regarding the role state agencies may play in the investigation process. The Proposed Rule simply states that when conducting investigations “OCR may seek the assistance of any State agency.”11 In many states hostile to abortion access, state agencies—including state departments of health— have a record of targeting abortion patients and providers.12 OCR should clarify which state agencies they would ask for assistance, whether these state agencies have the ability to make recommendations for resolving complaints under the federal refusal of care laws, and when OCR will engage in independent fact-finding and decision-making. Additionally, where state agencies may be involved in investigations, OCR must implement protections for the information gathered in the investigation process. This is of particular importance in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., now that patients who seek reproductive health care, including emergency abortion care, face the threat of criminalization from overzealous prosecutors and state and local officials who take an expansive view of abortion restrictions.
Under § 88.2(a)(4), OCR explains that it will “seek voluntary resolutions of complaints”13 in the investigation process. This provision, in conjunction with § 88.2(d), removes OCR’s ability to undertake involuntary enforcement measures, clarifies these contradictory provisions by explaining that it will be a voluntary process, and provides flexibility for recipients to work with OCR to rectify any findings of violations of the Proposed Rule. We agree that a voluntary resolution process is the best way to address these claims. We believe that this change is helpful to those filing complaints and that this is a positive step in explaining the resolution process.
Additionally, we agree with the Department’s decision to “utilize existing regulations [sic] enforcement”14 in the complaint process. We agree that the Department has basic authority to evaluate compliance with the federal refusal of care laws as provided for in the 2011 Rule and that this may include use of other existing regulatory enforcement mechanisms, such as the UAR, where applicable. However, we encourage the Department to clarify in the final rule that enforcement is limited to these existing provisions and that OCR is not creating new enforcement mechanisms under this provision. A clarification on this provision would help with lingering confusion about other terms used in the enforcement section.
The Center commends the Department for deleting many of the most harmful enforcement provisions from the 2019 Rule, particularly the potential for OCR to terminate all federal funding.15 The Department was correct in removing this section because it was an overly expansive enforcement method that exceeded the Department’s authority.16 But even with these changes, the Proposed Rule’s enforcement mechanisms would benefit from additional clarification.
In § 88.2(c), the Department uses the terms “relevant funding” and “appropriate action,” which are vague. The Constitution’s spending clause prohibits the Department from imposing ambiguous or coercive funding conditions.17 The Center encourages OCR to articulate additional limiting principles on “relevant funding” in the Final Rule. For example, the UAR permits the Department awarding agency to suspend or terminate only the particular “Federal award” at issue,18 disallow only the “cost of the activity or action not in compliance,”19 or withhold further federal awards only “for the project or program” at issue.20 Another example is Title VI of the Civil Rights Act of 1964, which limits funding termination to the “particular program, or part thereof, in which such noncompliance has been so found.”21 At minimum, OCR should include in the preamble language that “relevant funding” can never include all Department funding as this would be constitutionally infirm.22
Similarly, the Proposed Rule allows OCR to take “appropriate action” if a violation of the Proposed Rule occurs. The final rule should make clear that “appropriate action” means action pursuant to existing regulations and does not encompass any other enforcement tools not specified in existing regulations. OCR is limited to enforcement mechanisms encompassed in existing Departmental regulations such as the UAR.
IV. § 88.3 Voluntary Notice
We appreciate the Department’s decision to revise the voluntary notice language.23 The language of the notice in the 2019 Rule was one-sided and did not similarly inform patients of potential refusals of care and their right to receive full information about all their options.24 The Proposed Rule removes the objectionable language and streamlines the proposed notice.25 Posting the notice should be voluntary as the Proposed Rule puts forth.
It would provide further clarity and uniformity to adjust the language of § 88.3(e) to replace “may post notice” with “should consider posting.” This change would make § 88.3(e) uniform with the language in § 88.3(d), which uses “should consider” instead of “may.” By making this slight change, the provision will encourage entities to provide the information, which is critical to ensuring individuals are able to access the care that they need.
V. Additional Suggestions
We request that OCR correct an error in the preamble of the Proposed Rule.26 When paraphrasing the preemption provision of Section 1303 of the ACA, 42 U.S.C. § 18023, the language should be amended to mirror the language of the statute. Specifically, the following italicized language should be included “State laws regarding coverage, funding, or procedural requirements on abortions.” The Department should correct the language in the preamble to accurately reflect the limited scope of this provision.
We appreciate the opportunity to comment on this Proposed Rule. We thank the Department for its decision to largely rescind the 2019 Rule and return to the 2011 Rule framework. We request that the supporting documentation that we have made available through direct links in our citations be considered part of the formal administrative record for purposes of the Administrative Procedure Act. For further information, please contact Kelly Frye, Counsel, Reproductive Rights & Health at the National Women’s Law Center at [email protected].
Director, Federal Abortion Policy
National Women’s Law Center