ASHP Comments on HHS Final Rule for Conscience Clause

The Department of Health and Human Services (HHS) published a new “conscience clause” final rule that strips out pieces of the 2019 version of the rule that several federal district courts found unlawful. Due to legal challenges, the 2019 version of the final rule never took effect. In practice, the new conscience clause rule codifies the status quo — the standard of practice that has been in place since the last conscience clause regulations were published in 2011.

According to HHS, the final rule “clarifies the process for enforcing federal conscience laws and strengthens protections against conscience and religious discrimination.” The new rule enshrines federal statutory conscience protections for clinicians. It outlines HHS’s process for investigating and addressing conscience clause violations, but also attempts to balance those protections against the need to ensure patients maintain access to care.

The new final rule also largely aligns with ASHP's House of Delegates-approved policy, Pharmacist’s Right of Conscience and Patient’s Right of Access to Therapy, which recognizes “the right of pharmacists, as healthcare providers, and other pharmacy employees to decline to participate in therapies they consider to be morally, religiously, or ethically troubling.”

The ASHP policy supports “the proactive establishment of timely and convenient systems by pharmacists and their employers that protect the patient’s right to obtain legally prescribed and medically indicated treatments while reasonably accommodating in a nonpunitive manner the right of conscience.” Finally, the policy states that “a pharmacist exercising the right of conscience must be respectful of, and serve the legitimate healthcare needs and desires of, the patient, and shall provide a referral without any actions to persuade, coerce, or otherwise impose on the patient the pharmacist’s values, beliefs, or objections.”

HHS has indicated it will implement the new conscience clause final rule on March 11.