Bush administration fights with itself over conscience clause

by on October 5, 2008  •  In Employment law, Reproductive rights

Workplace Prof Blog: EEOC and HHS Clash on Proposed HHS Rule

In late August, the US Department of Health and Human Services proposed a regulation on health care "Provider Conscience." That proposed regulation would, among other things, prohibit discrimination "against any physician or other health care professional in the employment, promotion, termination, or extension of staff or other privileges because he performed or assisted in the performance, or refused to perform or assist in the performance of a lawful sterilization procedure or abortion on the grounds that doing so would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions concerning abortions or sterilization procedures themselves."

This language, along with language that provides that health care professionals cannot be made to provide these services, assist in the provision of these services, provide information about these services, or refer patients to those willing to provide these services, is viewed by supporters and critics alike, according to a Washington Post article, as "broad enough to protect pharmacists, doctors, nurses and others from providing birth control pills, Plan B emergency contraception and other forms of contraception."

The EEOC has now filed a comment objecting to the proposed regulation on the grounds that it interferes with the employer/employee balance on religious accommodation struck by Title VII:

"A proposed rule from the Department of Health and Human Services that would prohibit discrimination against health care workers refusing to participate in abortion-related services due to religious objections runs afoul of federal anti-discrimination law and could result in "profound confusion and extensive litigation," the Equal Employment Opportunity Commission says in comments on the proposed rule.

As the 30-day comment period for proposed regulations ends, HHS says it is reviewing a "higher than usual number of comments" to decide whether to go forward with the rule. Among several comments from key interest groups reviewed by BNA, EEOC is joined by the American Hospital Association in expressing concerns about the proposal, while the American Center for Law and Justice submits a comment in support of the rule.

In its comment, EEOC says Title VII of the 1964 Civil Rights Act ensures a constitutionally sound right to the accommodation of religious practices "for all employees, including health care employees." The proposed rule, purporting to create "an absolute right to religious accommodation," detracts from the employer’s ability to show "undue hardship" and throws off the balance of Title VII analysis, it says….


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