1. Kritz, Fran


In controversial move, federal health department signals shift in civil rights focus.


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In January, the U.S. Department of Health and Human Services (HHS) announced the creation of the Conscience and Religious Freedom Division within its Office for Civil Rights (OCR). The new division will review complaints from nurses and other health care providers about being required by employers to engage in practices such as abortion, physician-assisted dying, sterilization, or support of advance directives despite religious or conscience objections.


The division was created, in part, to enforce over 20 preexisting federal religious antidiscrimination and conscience-protection statutes, according to Roger Severino, director of the OCR. The new rule proposed by the HHS both clarifies what is covered under current statutes and expands the HHS's role to include technical assistance and outreach to inform health care organizations on what the statutes allow. In addition, according to the proposed rule, "OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by [the HHS] and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints." (For the full rule, see


Among other potential penalties for not complying with federal statutes, according to the proposed rule, can be loss of federal funds for a health care organization. Many hospitals and facilities depend on federal funding to support a broad array of essential services-any threatened loss of funding is widely understood to have a potentially chilling effect on institutional policies and practices. A public comment period on the new rule has now ended; at the time of this writing, the HHS planned to post, review, and consider the comments before issuance of a final rule. Said Severino in a statement, "No one should be forced to choose between helping sick people and living by one's deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice."


Solution in search of a problem? Despite Severino's strong rhetoric, which has been welcomed by many conservative and religious organizations, it's not clear how widespread an actual problem such discrimination against health care workers or institutions has been. A number of state and federal laws already protect nurses and other health care providers against recriminations or penalties for refusal to participate in procedures such as abortion that may violate personal religious or conscience convictions. Before the existence of the new division, the OCR was already responsible for fielding complaints about infringement of freedom of conscience and religion. According to a March 5 story by Kaiser Health News, from late 2016 through early January 2018, the OCR received just over 30 complaints from health care providers related to religious or conscience issues, a small increase from previous years. By contrast, according to the same story, in 2017 alone the OCR received nearly 30,000 other complaints, most of them related to patient discrimination or privacy issues.


The OCR has in the past mainly focused on enforcement of privacy laws and on protecting patients against discrimination by health care providers because of race and gender. More recently, under the Obama administration, the OCR also included discrimination protections for gay, lesbian, and transgender patients-a trend that appears to play a role in some supporters' enthusiasm for the creation of the new HHS division.


Professional organizations express concerns. What effect will the new division's more vigorous support for conscience and religious freedom complaints of health care workers have on patient care? Will the OCR, as some fear, open the door for individuals and institutions to construe existing religious and conscience protection statutes more broadly than in the past, thus allowing nurses and others to argue that they are not bound by ethical and professional obligations to provide care to patients whose sexual identity or religion or health care choices they object to? Some think such efforts may be unlikely, since they would be sure to meet strong legal challenges based on past precedent. Or will the new OCR division limit enforcement of existing statutes to protecting nurses and others whose substantive religious or conscience objections to a subset of specific services and procedures may not have been adequately respected by their employers? Opinions about what to expect vary widely.


Several professional organizations have strongly cautioned that the new division within the OCR, and the proposed rule, could have the broader effect of implicitly licensing discrimination against vulnerable groups and could leave many patients-from women seeking reproductive services to people who are gay or transgendered-uncared for. On March 23, the American Nurses Association (ANA) and the American Academy of Nursing (AAN) submitted a joint comment letter to the HHS, calling for the OCR proposed rules to be rescinded and urging that the OCR "create a standard for health systems and individual practices to ensure prompt, easy access to critical health care services if an individual provider has a moral or ethical objection to certain health care services."


Citing the ANA Code of Ethics for Nurses with Interpretive Statements, the comment letter emphasizes that the ANA and AAN "strongly support the right and prerogative of nurses-and all healthcare workers-to heed their moral and ethical values when making care decisions." At the same time, "[d]iscrimination in health care settings remains a grave and widespread problem for many vulnerable populations and contributes to a wide range of health disparities. Existing religion-based exemptions already create hardships for many individuals." In health care practice, the letter observes, "patients come first" and we must be careful "to strike an equitable balance between conscientious objections and patients' inalienable rights."


Similarly, a statement from the American College of Physicians warns that "the creation of a new [HHS] division[horizontal ellipsis] tasked with enforcing conscience laws must not lead to discrimination against any category or class of patients, as guided by the medical profession's ethical obligations."


Religious conservatives welcome the new HHS division. In an e-mailed response to an inquiry from AJN, Kathy Schoonover-Shoffner, PhD, RN, national director of Nurses Christian Fellowship USA and editor-in-chief of the Journal of Christian Nursing, expressed support for the new office:


"[W]e must affirm the moral, ethical, and religious values of nurses. Procedures like abortion and euthanasia, which result in the termination of a life, raise the highest level of moral scrutiny and concern in almost all ethical and religious traditions[horizontal ellipsis]. Although the [OCR] told the Washington Post (March 5) that it received only 36 complaints related to "alleged affronts to religious beliefs and moral convictions" in 2017, an HHS spokesperson said the office had received at least 40 conscience-related complaints since the division opened on January 18[horizontal ellipsis]. Provision 5 of the Code of Ethics for Nurses with Interpretive Statements explains that nurses' professional and personal values are to be integrated, and states that "[d]uties to self involve an authentic expression of one's own moral point of view in practice" (Statement 5.3)[horizontal ellipsis]. The proposed rule would allow nurses and other providers a private right of action to protect their conscience rights. As a profession, we should support statutory rules which provide nurses with greater protection from external coercion."


What is and isn't a conscience objection? A number of individuals and organizations have emphasized the distinction between a conscience objection and a personal prejudice or preference. In a recent phone interview with AJN, Edie Brous, JD, MPH, MS, RN, who frequently writes on legal issues affecting nurses, noted that if the new Conscience and Religious Freedom Division were to attempt to construe existing conscience and religious objections statutes in a broader way than past precedent suggests, it might "present a slippery slope." For example, Brous hypothesized, "If you have a nurse vehemently opposed to homosexuality assigned to care for an ill gay person who won't [care for that patient], where do you draw the line? [Or] can they refuse to care for a patient of a different religion?"


Douglas P. Olsen, PhD, RN, an associate professor at the Michigan State University College of Nursing and an expert on ethics in health care, in an e-mail to AJN questioned the new HHS division's potentially broad application of what constitutes a bona fide conscience objection when it comes to caring for patients. "From an ethical point of view, conscientious objection needs to be based on a long-standing belief that stems from an established tradition," wrote Olsen, rather than simply based on "preference." It should be "for avoiding acting against one's beliefs, not for avoiding others you think are acting against your beliefs. [For example,] conscientious objection justifies not doing abortions, [but] not refusing care to someone who has had an abortion."


The effects of creating this new division within the OCR will not be clear for some time yet, but many will be watching developments closely.-Fran Kritz