- The Washington Times - Tuesday, April 19, 2022

The Biden administration plans to remove a Trump-era conscience clause that protected medical workers from participating in services like abortions and transgender sex-change treatments.

A Health and Human Services spokesperson confirmed to Politico on Tuesday that the agency “has made clear through the unified regulatory agenda that we are in the rulemaking process” to implement the new regulations as early as later this month.

That confirms the expectations of Catholic religious liberty advocates and progressive sexual-rights advocates who have battled over the issue of religious conscience ever since Obamacare mandated a decade ago that Catholic schools, hospitals and religious orders pay for contraceptive services in their employee health care plans.

The Trump administration introduced the conscience clause in 2018 to reverse an earlier 2016 HHS ruling that required health care providers to perform gender-transition services and providers, insurers and employers to cover those services in their health plans.

Both sides have expected the Biden administration to overturn the Trump regulation, which went unenforced after a federal court blocked it in 2019. 

Several reproductive rights groups, contacted for comment, said they will refrain from public comment until they see how extensive the new regulations will be.

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Attorney Martin Nussbaum, general counsel for the Colorado-based Catholic Benefits Association, said Tuesday that his religious liberty advocacy group expects HHS to issue seven distinct rules later this month and early next month — including a redefinition of sex-based discrimination in Section 1557 of the Affordable Care Act that will make it impossible for Christians to refuse abortion services on moral grounds.

“It’s a rollback of conscience and religious freedom protections for health care professionals, religious hospitals, health care organizations and employers,” said Mr. Nussbaum, whose organization sued the Obama administration in November 2016 in federal court over the issue.

“HHS’s forthcoming regulations will create an existential crisis for Catholic hospitals seeking to conduct their healing ministries faithful to the Catholic values inspiring those ministries,” he added.

The Trump-era rule included 12 distinct protections for religious conscience and freedom, according to the attorney.

Mr. Nussbaum predicted the forthcoming regulations will include changes that force religious hospitals and employers to cover surgical abortions, cross-sex hormones, gender-transition surgeries, gender-affirming cosmetic surgeries and voice modification in their insurance plans — as well as expanded services for fertility treatments, contraception, abortifacients and sterilizations.

The Catholic Benefits Association bases this assessment on a 74-page legal memorandum that it discovered attached to last year’s Whitman-Walker Clinic v. the U.S. Department of Health and Human Services case in the U.S. District Court for the District of Columbia.

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In that case, HHS advised the court that it was “working to promulgate a new rule” based in part on the Washington clinic’s concerns about abortion access.

Supporting documents from 30 sexual rights groups, including Planned Parenthood, included the memo from the Washington-based Leadership Conference on Civil and Human Rights in Exhibit B.

A spokesperson for the Leadership Conference told The Times in an email that “like everyone else,” the civil rights group “is waiting” to comment more fully on the new HHS regulations when they appear.

“We are looking forward to a Notice of Proposed Rulemaking from the U.S. Department of Health and Human Services updating the regulations implementing Section 1557 of the Affordable Care Act,” the spokeswoman wrote.

• Sean Salai can be reached at ssalai@washingtontimes.com.

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