ACLJ Submits Public Comment on HHS Proposed Rule Forcing Doctors and Nurses To Perform Abortions

This week, as promised, the ACLJ submitted formal public comments and legal analyses on behalf of itself and over 227,103 of our supporters in opposition to a Proposed Rule by the Centers for Medicare and Medicaid Services; Office for Civil Rights (OCR), Office of the Secretary, HHS; named, Nondiscrimination in Health Programs and Activities.  

HHS, called the “Department” in the Proposed Regulation, opened the public comment period on August 4, 2022.  It proposed to, in the name of nondiscrimination, discriminate against religious medical providers.  Specifically, HHS said: “The Department’s view is that Section 1557 does not require the Department to incorporate the language of Title IX’s abortion neutrality provision into its Section 1557 regulation.”

Yet under federal law, specifically Title IX, the abortion neutrality provision actually prohibits anyone from compelling doctors, nurses, and hospitals to do or assist in an abortion; and it must be enforced, not ignored, by the federal government.

The ACLJ opposed the adoption of this rule saying:

In other words, the Department has decided for Congress that Title IX’s abortion neutrality provision would inhibit Congress’s objectives. Yet, it is the Department, not Congress, who is refusing to incorporate congressional provisions that exist to protect the constitutional rights of religious health care providers not to provide or participate in abortion – an act that violates their very conscience. Moreover, abortion is not, and never has been, health care.

We called them out on their selective adherence to the rule of law by saying:

Further, the Department is trying to have its cake and eat it too, as it incorporates its own choice of Title IX regulations—applicable to religious health care providers, (“Under this proposed rule, too, recipients would be required to comply with the specific prohibitions on discrimination found in the Department’s Title IX regulations …”). The Department may not ignore Title IX’s abortion neutrality provision.

Furthermore, in a stubborn allegiance to bad law, the Department seeks to define refusal to provide abortion as discrimination against women.  This legal proposition was rejected in Bray v. Alexandria Women’s Health Clinic, 113 S. Ct. 753, 763 (1993) - a case argued (twice!) and won by ACLJ Chief Counsel Jay Sekulow. The Supreme Court in that case held that opposition to abortion is not an “invidiously discriminatory animus” against women, and the high Court reaffirmed this principle earlier this year in Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2235 (2022).

Lastly, as we stated in our submitted comments:

No doctor or nurse or other medical professional is refusing to treat a woman who had an abortion or terminated a pregnancy, to use the Department’s euphemism.  They are refusing to do an abortion but not, say treat a woman who has had an abortion but now presenting for gallstones, a broken leg, or even for bleeding after a botched abortion.  They would treat her for all of these things.  The Proposed Rule forbids a discrimination not asserted in order to compel medical professionals to perform an abortion contrary to their conscience, in violation of their legal rights, and in excess of the Department’s statutory grant of power.

We will remain vigilant to ensure that your voice is heard and that religious liberty is protected.

Every one of you who submitted a comment or signed our petition is important, as this shows HHS that there are thousands and thousands of people who do stand against the Department’s Proposed Rule and for equal and constitutional treatment for individuals’ conscience rights.

If you are a medical professional and have every felt pressured to participate in an abortion in any way, please contact us at ACLJ.org/HELP. Despite what the Biden HHS is trying to promulgate through this new rule, you have rights, and we are here to protect them.