There are various federal statutory provisions commonly referred to as “conscience protection statutes” that apply to recipients of federal funds and prohibit recipients from discriminating against health care providers and/or employees who refuse, based on moral or religious grounds, to perform abortion or sterilization procedures. Specifically, the Church Amendments, the Weldon Amendment, and the newly enacted the Patient Protection and Affordable Care Act all contain anti-discrimination provisions.

Initially, the Church Amendments were enacted in 1973 on the heels of Roe v. Wade, which legalized abortion, to make clear that no health care provider who received federal funds was required to perform abortions or sterilizations. However, the second provision of the Church Amendments prohibits employers from discriminating against any physician or other health care personnel in employment, promotion, termination of employment, or the extension of staff or other privileges because the individual “performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.”

Since the Church Amendments were passed into law, there have never been regulations enacted that interpret the Church Amendments. Notwithstanding the fact that the law had been on the books for thirty-five years, in 2008 the Department of Health and Human Services (“HHS”) decided to issue a notice of proposed rulemaking. Almost immediately numerous groups objected to the notice of proposed rulemaking. Most surprisingly, one of the groups objecting was the Equal Employment Opportunities Commission, which sent a letter objecting that the proposed rule was confusing and unnecessary and further, that the case law addressing accommodation of religious beliefs should simply be followed in cases brought by health care providers where violations of the Church Amendments were alleged.

The final 2008 rule implemented by HHS became the subject of litigation and in March 2009, there was a proposal to rescind the rule altogether. After two years of receiving and compiling nearly 300,000 comments, HHS gutted the final rule and rescinded all provisions except for the last provision. The amended final rule  now simply provides an enforcement mechanism for complaints of violation of the conscience provisions. According to the amended final rule that was issued on February 18, 2011 and will be published on February 23, 2011, complaints of violations of the Church Amendments may be filed with the Office of Civil Rights (“OCR”) in HHS. Conspicuously absent from the regulations is any indication as to how complaints will be evaluated. There is merely a statement that any complaints filed with OCR will be handled in coordination with the EEOC. So, after nearly three years of wrangling over the final rule, employers are still left with no guidance.

For now, it does appear that where an employee objects to performing an abortion or sterilization, an employer should treat the request to be excluded from those procedures as a request for a religious accommodation under Title VII (or applicable state law). Accordingly, those requests should be granted unless doing so creates an undue hardship for the employer.