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Comments on Provider Conscience Rule

The Department of Health and Human Services (HHS) recently proposed a rule purporting to clarify the scope of statutory protections for medical providers who decline to participate in certain procedures, such as abortion or euthanasia, due to religious or moral objections. HHS issued a similar rule in 2008 but rescinded it in 2011 due to concern that the 2008 rule’s expansive definitions of statutory terms would lead providers to believe, incorrectly, that statutory protections extended not just to refusals to perform particular procedures, but also to refusals to care for particular types of patients, such as LGBTQ individuals.

Our comments criticize HHS for reviving the 2008 rule’s expansive definitions without acknowledging its 2011 findings that such definitions would foster confusion and discrimination. We also critique the agency’s assessment of the costs and benefits of the proposed rule. Specifically, we note that HHS (1) underestimates the rule’s direct compliance costs and (2) completely ignores the rule’s likely indirect costs, in the form of reduced access to health care for patients and increased personnel costs for health care facilities.