New Biden Rule Would Label Refusal To Perform Abortions by Doctors and Nurses as Unlawful “Discrimination”

The Biden Administration is trying to force doctors and nurses to perform or participate in abortions.  The Department of Health and Human Services (HHS) proposed a new regulation regarding nondiscrimination in health programs and activities on August 4, 2022. Especially concerning to the ACLJ is HHS’s consideration of a provision “prohibiting discrimination on the basis of pregnancy-related conditions as a form of sex-based discrimination.” If included in the final rule, this provision would be a deliberate attack on the conscience rights of healthcare workers across the country. The exercises of one’s legally and constitutionally protected conscience rights would now be labeled as unlawful “discrimination.”

HHS is seeking comment on the inclusions of this new unconstitutional restriction, and the comment period closes October 4, 2022. The ACLJ is drafting a comment in opposition to the inclusion of the “pregnancy-related conditions” provision in order to defend the constitutional rights of healthcare workers nationwide.

The proposed rule makes the assertion that refusing to provide abortion-related services is somehow unlawful “sex-based discrimination.” HHS pretends to reconcile existing freedom of conscience protections with their proposed provision, but really paints a picture that those who deny abortion-related services do so because of discrimination against woman, not because of moral or religious conviction.

This faulty inference that opposition to abortion is an example of discrimination against women has been rejected by the Supreme Court in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 274 (1993) (Opposition to abortion is not an “invidiously discriminatory animus” against women) – a case argued and won by ACLJ Chief Counsel Jay Sekulow at the Supreme Court decades ago.  The Supreme Court’s definitive ruling on the matter aside, the fact is that naturally roughly half of all unborn babies are girls, and opposition to abortion actually saves little girls.

Also, no doctor or nurse or other medical professional with a conscience objection to abortion is refusing to treat a woman who had an abortion. They are refusing to do the act of abortion but not, say, treat a woman who had an abortion presenting for gallstones, a broken leg, or even for complications from a botched abortion, miscarriage, or ectopic pregnancy. They would treat her for all of these things. The regulation would impinge on both the medical professionals’ conscience right, their constitutionally protected religious liberty rights, and their medical judgment.

Our constitutionally protected rights are under attack in this new proposed rule. Not only is this a blatant violation of our freedoms of religion and conscience, but the proposed rule also seeks to regulate how a doctor decides what is in their patient’s best interest. For instance, a doctor can refuse to amputate a healthy limb based on their medical judgment even if the patient wants it. If it is not discrimination to refuse to amputate a healthy arm or leg, why is it discrimination to refuse to perform an abortion based on medical judgment or a conscience objection?

Congress had previously done well in respecting the First Amendment rights of healthcare workers. This new rule would undermine, obfuscate, and dilute those protections. It cannot be allowed to stand. It is imperative that we continue to protect a doctor’s constitutionally and federally protected conscience rights against the Biden Administration’s quest to expand abortion.  To that end, we are preparing to submit formal legal public comments in opposition to this unconstitutional attack on the conscience rights of doctors and nurses before the looming deadline.