WASHINGTON, DC —The Rutherford Institute has issued a public comment opposing the U.S. Department of Health and Human Services’ proposed rule on “Nondiscrimination in Health Programs and Activities,” which seeks to force healthcare workers to provide abortion and gender transition services, among other things. The proposed rule purports to affirm and implement the Biden Administration’s perspectives on nondiscrimination based on sexual orientation and gender identity, as well as reproductive healthcare including abortions. However, Rutherford Institute attorneys warn that any attempt by the government to compel healthcare workers to provide services against their professional judgement, religious convictions, and conscience is unconstitutional.
“Healthcare workers should not face penalties for refusing to perform controversial medical procedures like abortions and gender transition services which go against their deeply held religious or ethical beliefs,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “As the U.S. Supreme Court recognized, ‘Governments must not be allowed to force persons to express a message contrary to their deepest convictions.’ Even more so, governments must not be allowed to force individuals to perform acts that are contrary to their convictions.”
In August 2022, the Department of Human and Health Services (“HHS”) issued a notice for proposed rulemaking (“NPRM”), which would reinterpret and expand what is meant by discrimination in covered health care programs and activities contained in Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination under any health program or activity that receives federal financial assistance on the basis of race, color, national origin, sex, age or disability, or under any program or activity that is administered by an executive agency or by an entity established under title I of the ACA (e.g., Health Insurance Marketplaces). If adopted, the proposed rule would compel many healthcare providers to violate their conscience and religious convictions in order to maintain their employment.
Yet, as Rutherford Institute attorneys point out, federal and state laws exist to protect workers from being forced to make an impossible choice—whether they should commit an act which goes against their deeply held beliefs, or whether they should lose their ability to earn a living and provide for themselves and their families. By forcing healthcare providers to choose between keeping their jobs or staying true to their deeply held beliefs, the HHS’ proposed rule will conflict with established laws and could result in widespread litigation throughout the country. Moreover, Institute attorneys argue, by seeking to punish those who hold religious and ethical beliefs with which HHS disagrees, the proposed rule appears to show hostility to religion, which is in direct opposition to the First Amendment’s Free Exercise Clause. The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. While the Establishment Clause prohibits the government from favoring or disfavoring a religion, the Free Exercise Clause protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of a “public morals” or “compelling” governmental interest.
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