A new rule from the Department of Health and Human Services (DHHS) has emerged as the latest battleground in the health care con- science wars. Promulgated during the waning months of the Bush ad- ministration, the rule became effec- tive in January. Heralded as a “pro- vider conscience regulation” by its supporters and derided as a “mid- night regulation” by its detractors, the rule could alter the landscape of federal conscience law.

A new rule from the Department of Health and Human Services (DHHS) has emerged as the latest battleground in the health care con- science wars. Promulgated during the waning months of the Bush ad- ministration, the rule became effec- tive in January. Heralded as a “pro- vider conscience regulation” by its supporters and derided as a “mid- night regulation” by its detractors, the rule could alter the landscape of federal conscience law.

The regulation, as explained in its text (see the Supplementary Ap- pendix, available with the full text of this article at NEJM.org), aims to raise awareness of and ensure compliance with federal health care conscience protection stat- utes. Existing laws, which are tied to the receipt of federal funds, ad- dress moral or religious objections to sterilization and abortion. They protect physicians, other health care personnel, hospitals, and in- surance plans from discrimination for failing to provide, offer training for, fund, participate in, or refer pa- tients for abortions. Among other things, the laws ensure that these persons cannot be required to par- ticipate in sterilizations or abor- tions and that entities cannot be required to make facilities or per- sonnel available for them. And they note that decisions on admissions and accreditation must be di vorced from beliefs and behaviors related to abortion. On their face, these laws are quite broad.

But the Bush administration’s rule is broader still. It restates ex- isting laws and exploits ambigu- ities in them. For example, one statute says, “No individual shall be required to perform or assist in the performance of any part of a

health service program or research activity funded” by DHHS if it “would be contrary to his religious beliefs or moral convictions.”1 Here the rule sidesteps courts, which in- terpret statutory ambiguities and discern congressional intent, and of fers sweeping definitions. It de- fines “individual” as physicians, other health care providers, hospi- tals, laboratories, and insurance companies, as well as “employees, volunteers, trainees, contractors, and other persons” who work for an entity that receives DHHS funds. It defines “assist in the perfor- mance” as “any activity with a rea- sonable connection” to a procedure or health service, including coun- seling and making “other arrange- ments” for the activity. Although the rule states that patients’ ability to obtain health care services is un- changed, its expansive definitions suggest otherwise. Now everyone connected to health care may opt out of a wide range of activities, from discussions about birth con- trol to referrals for vaccinations. As the rule explains, “an employee whose task it is to clean the instru- ments used in a particular proce- dure would also be considered to assist in the performance of the particular procedure” and would therefore be protected. Taken to its logical extreme, the rule could cause health care to grind to a halt.

It also raises other concerns. In terms of employment law, Title VII of the Civil Rights Act, which ap- plies to organizations with 15 or more employees, requires balanc- ing reasonable accommodations for employees who have religious, ethi- cal, or moral objections to certain aspects of their jobs with undue hardship for employers. But the

new rule suggests that if an em- ployee objects, for example, to be- ing a scrub nurse during operative treatment for an ectopic pregnan- cy, subsequently reassigning that employee to a different department may constitute unlawful discrimi- nation — a characterization that may be at odds with Title VII juris- prudence.2 As officials of the Equal Employment Opportunity Commis- sion remarked when it was pro- posed, the rule could “throw this entire body of law into question.”3

Furthermore, although the rule purports to address intolerance toward “individual objections to abortion or other individual reli- gious beliefs or moral convictions,” it cites no evidence of such intoler- ance — nor would it directly ad- dress such intolerance if it existed. Constitutional concerns about the rule, including violations of state autonomy and rights to contracep- tion, also lurk. And the stated goals of the rule — to foster a “more in- clusive, tolerant environment” and promote DHHS’s “mission of ex- panding patient access to neces- sary health services” — conflict with the reality of extensive objec- tion rights. Protection for the si- lence of providers who object to care is at odds with the rule’s call for “open communication” be- tween patients and physicians. Moreover, there is no emergency exception for patient care. In states that require health care workers to provide rape victims with in- formation about emergency con- traception, the rule may allow them to refuse to do so.

Recently, the DHHS, now an- swering to President Barack Obama, took steps to rescind the rule (see the Supplementary Ap-

n engl j med 360;15 nejm.org april 9, 2009