Project Logo

Protection of Conscience Project

Service, not Servitude
Legal Commentary

Commentary re: Regulation 45 CFR Part 88 (2011)
U.S. Department of Health and Human Services

Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law

  • Note: This regulation, issued in December, 2008 by the Bush Administration, was eviscerated by the Obama Administration and re-issued in February, 2011 under the same name. [For comparison, see archived text of 2008 regulation and related commentary.]


Proposed 2008/2009 rule open for comment

On 21 August, 2008, the Department issued the final draft of a proposed regulation, Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law, with a deadline of 25 September, 2008 for public comments. The stated goals of the regulation were:

(1) educate the public and health care providers on the obligations imposed, and protections afforded, by federal law;

(2) work with State and local governments and other recipients of funds from the Department to ensure compliance with the nondiscrimination requirements embodied in the Church Amendments, PHS Act § 245, and the Weldon Amendment;

(3) when such compliance efforts prove unsuccessful, enforce these nondiscrimination laws through the various Department mechanisms, to ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law; and

(4) otherwise take an active role in promoting open communication within the healthcare industry, and between providers and patients, fostering a more inclusive, tolerant environment in the health care industry than may currently exist."

Final 2008/2009 rule enacted

In December, 2008 the Department responded to the comments received and issued the final rule in the Federal Register. The rule took effect on the last day of the outgoing Bush administration in January, 2009.

Obama moves to revoke 2008/2009rule

The incoming Obama administration was opposed to the regulation. In March, 2009 it announced its intention to revoke the rule and solicited comments on its plan for a 30 day period ending 9 April. The Department received over 300,000 comments on its proposal to revoke the Bush regulation, 187,000 of which (62%) were opposed to revocation.

2011 rule enacted

The new regulation was announced in February, 2011 and came into force the following month.

Materials posted

The materials posted in relation to this regulation are listed below.

OP ED, Letters & News Releases

2011-02-17 Heartland Institute

2011-02-18 Christian Medical Association

2011-02-18 US Conference of Catholic Bishops

2011-02-18 Americans United for Life

2011-02-21 Obama Administration Guts Healthcare Conscience Regulation

2011-03-16 Letter to Secretary Sebelius from Medical Students for Life of America et al

Extended comment

2011-02-19 Commentary by U.S. Department of Health and Human Services

2011-02-21 Commentary by Christian Medical Association

2011-03-09 The Progressive Case for Conscience Protection

Print Friendly and PDF