Health care organizations should move quickly to verify the defensibility of their current and past practices and actions for offering and providing religious accommodation and avoiding religious discrimination in light of the announcements by the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) of the opening of two new Church Amendment right of conscience investigations less than a month after of OCR published a new right of conscience guidance and launched a new online portal for whistleblowers to use to submit tips or complaints regarding the chemical and surgical mutilation of children. These developments are particularly concerning in light of the sharp reversal of the policies of the prior administration and the apparent current readiness of the agencies to treat actions taken under the previous administration’s policies as grounds for investigation or enforcement.
Federal Statutes Protect “Right of Conscience” In Health Care
While Federal protections against religious discrimination and infringement on rights of conscience and longstanding and well-established through the religious freedom and discrimination provisions of the First Amendment to the United States Constitution and the Civil Rights Act of 1964 (the “CRA”), and health care specific laws such as the Church Amendment, Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) and other federal laws, President Trump’s policy directions on right of conscience and other religious freedom and discrimination are fueling new requirements and risks for health care organizations and other businesses and government organizations.
HHS interpretation and enforcement of the prohibitions against religious or other discrimination under Sectio 1557 and other federal rules protecting Rights of Conscience in health care is now rapidly evolving in response to recent Executive Orders of President Trump. Its announcement of two right of conscience investigations against health care organizations in less than a month illustrate the exploding risks that health care providers and other organizations receiving HHS funding face for excluding or discriminating against health care providers, patients, and certain other federal program participants who refuse on religious or moral grounds to participate in certain health care services under these federal health care right of conscience rules including the following:
Church Amendment
Enacted in the 1970s to protect the rights of individuals and entities to object to performing or assisting in the performance of certain procedures because of their religious beliefs or moral convictions, the Church Amendment:
- Prohibits public officials and authorities from requiring recipients of certain federal financial assistance to provide or make their facilities available for abortion or sterilization when the recipient has a religious or moral objection to sterilization or abortion.
- Prohibits entities that receive certain federal financial assistance from discriminating against physicians and health care personnel:
- because they performed a lawful sterilization, abortion, or other lawful health service or research activity,
- because they refused to perform a lawful sterilization, abortion, or other lawful health service or research activity, or
- because of their religious beliefs or moral convictions about sterilization, abortion, or any other lawful health services or research activities.
- Protects individuals who object because of their religious or moral beliefs to performing or assisting in the performance of any part of a federally funded health service program or research activity.
- Prohibits entities that receive certain federal financial assistance from discriminating against applicants for training or study because the applicant is reluctant or willing to participate in abortions or sterilizations due to their religious or moral beliefs.
Coats-Snow Amendment
The Coats-Snowe Amendment codified as Section 245 of the Public Health Service Act, prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity:
- Refuses to undergo training in the performance of abortions;
- Refuses to require or provide abortion training;
- Refuses to perform abortions, or to provide referrals for abortion training or for abortions;
- Refuses to make arrangements for any of the above activities related to abortion; or
- Attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.
Weldon Amendment.
The Weldon Amendment provides that none of the funds made available in those HHS appropriations acts may be made available to a Federal agency or program, or to a state or local government, if the agency, program, or government discriminates against any institutional or individual health care entity on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. It defines “health care entity” to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”
Trump Policy Directives Drive New Risks By Changing Prior Religion & Other Discrimination Interpretations & Prioritizing New Rule Enforcement For Past, Current & Future Actions
Although U.S. law long has protected religious freedom through the protections of the First Amendment to the United States Constitution, the Civil Rights Act of 1964 (the “CRA”), Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) and other federal laws, President Trump’s policy directions on right of conscience and other religous freedom and discrimination, HHS interpretation and enforcement of these Rights of Conscience now are rapidly evolving in response to recent Executive Orders of President Trump.
Most directly, HHS’ new emphasis on investigation and enforcement of Rights of Conscience directly responds to Executive Orders of President Trump on religious freedom. On his Executive Order 14188 – Additional Measures To Combat Anti-Semitism (January 29, 2025), for instance, President Trump in declaring his administration’s commitment to combating the rise of anti-Semitism and anti-Semitic incidents in the United States and around the world and directing the Justice Department and other agencies to vigorously enforce Civil Rights Act Title VI, specifically noted the current prohibitions against anti-Semitism embedded in U.S. religious freedom laws, stating:
Title VI of the Civil Rights Act of 1964 (Title VI) prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.
In Executive Order 14202, Eradicating Anti-Christian Bias (February 6, 2025), President Trump ordered HHS and other agencies to review and recommend policy changes and other remedial actions to correct any unlawful anti-Christian policies, practices of the Biden Administration and develop other strategies to protect the religious liberties of Americans.
Subsequently, in his May 11, 2025, Executive Order 14291, Establishment of the Religious Liberty Commission, President Trump took aim at threats to religious freedom from efforts of certain Federal, state and local policies that President Trump views as infringing longstanding conscience protections, preventing parents from sending their children to religious schools, threatening loss of funding or denial of non-profit tax status for faith-based entities, and singling out religious groups and institutions for exclusion from governmental programs. To redress these threats, President Trump announced it is “the policy of the executive branch to vigorously enforce the historic and robust protections for religious liberty enshrined in Federal law” and to “promote citizens’ pride in our foundational history, identify emerging threats to religious liberty, uphold Federal laws that protect all citizens’ full participation in a pluralistic democracy, and protect the free exercise of religion.”
To implement this policy, President Trump established a “Religious Liberty Commission” to prepare a comprehensive report on the foundations of religious liberty in America, the impact of religious liberty on American society, current threats to domestic religious liberty, strategies to preserve and enhance religious liberty protections for future generations, and programs to increase awareness of and celebrate America’s peaceful religious pluralism. In defining the directives of the Commission, President Trump expressly included among the topics for consideration by the Commission “[c]onscience protections in the health care field and concerning vaccine mandates” and the Permitting time for voluntary prayer and rright of all Americans to freely exercise their faith without fear or Government censorship or retaliation. See Executive Order 14291, Establishment of the Religious Liberty Commission (May 1, 2025).
The Trump Administration’s emphasis on protecting federal right of conscience and other religious freedom protections is made more perilous by his sharp disagreement, revocation, and characterization as patently illegal various key aspects of the interpretation and enforcement policies of the Biden, Obama and other previous administration regarding federal right of conscience and other religious freedom, sexual orientation, reproductive rights and other civil rights policies and protections. See e.g., Executive Order 14281 -Restoring Equality of Opportunity and Meritocracy (April 23, 2025);
Beyond these religious freedom directives, President Trump also has issued other Executive Orders reversing key Biden Administration policies on politically sensitive policies often overlapping with issues of religious conscience. For instance, in one of his earliest actions upon commencing his second Presidency, President Trump overruled previous administrations’ policies that promoted and protected the right of individuals to self-define their own sex regardless of biological sex at birth and associated safeguards and protection by directing[1] that U.S. law recognize only two genders, male and female, the assignment of which is determined by the gender of an individual at birth.
Subsequently, in Executive Order 14187, Protecting Children From Chemical and Surgical Mutilation (January 28, 2025) overruled Biden Administration policies protective of gender transition and other treatments for gender dysphoria by ordering HHS to end take action to terminate all regulations and other policies and practices that allow or support chemical and surgical mutilation of children as a treatment of gender dysphoria.
Meanwhile, in his Executive Order 14182-Enforcing the Hyde Amendment (January 24, 2025), President Trump reversed key policies undertaken by the Biden Administration to mitigate the effects of the Supreme Court’s landmark Dobbs vs. Jackson Women’s Health Organization decision that overturned Roe vs. Wade by declaring the U.S. Constitution does not protect a woman’s right to an abortion.
In response to these and other Trump Executive Orders, HHS on April 14, 2025, published its new Guidance for Whistleblowers on the Chemical and Surgical Mutilation of Children (the “Whistleblower Guidance”). The Whistleblower Guidance explains the conditions under which the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”) allows health care providers, health plans, health care clearinghouses or their business associates (“HIPAA Entities”) to disclose information about chemical or surgical mutilation of children in violation of Executive Order and key federal anti-retaliation protections for whistleblowers making these disclosures or engaging in other exercises of their Rights of Conscience under the Church Act.
New HIPAA Whistleblower Guidance
The HIPAA Privacy Rule generally prohibits use, disclosure, and protection of protected health information (“PHI) by HIPAA Entities. The Whistleblower Guidance notes that since its inception, the Privacy Rule has provided various pathways for HIPAA Entities to use and disclose PHI in connection with whistleblowing actions of their workforce members or business associates.
Along with the option to use de-identified information in whistleblower disclosures, the Whistleblower Guidance also notes that the whistleblower provision of the Privacy Rule provides that a HIPAA Entity is not considered to violate the Privacy Rule when a workforce member or business associate discloses PHI in the following circumstances:
- The workforce member or business associate has a good faith belief that the conduct being reported is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public[2], and
- The workforce member or business associate of the covered entity discloses PHI to any of the following:
- A health oversight agency[3] or public health authority[4] authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the covered entity.
- An appropriate health care accreditation organization[5], such as a state medical board, for the purpose of reporting the allegation of failure to meet professional standards[6] or misconduct by the covered entity.
- An attorney retained by or on behalf of the workforce member or business associate for the purpose of determining his or her legal options with respect to whistleblowing.
Thus, the Whistleblower Guidance states the Privacy Rule protects a HIPAA Entity from liability for the good-faith whistleblower action of a member of its workforce or a business associate in these situations, but does not protect the HIPAA Entity where, for example, a member of its workforce or its business associate discloses PHI to a member of the media or in some other manner not in accordance with an allowable exception to the Privacy Rule.
Since the HIPAA Entities bear responsibility for inappropriate disclosures of PHI by whistleblowers from their workforce, the Whistleblower Guidance sends a strong message to HIPAA Entities to properly document and train workforce members about when and how HIPAA allows or prohibits the use of PHI when reporting known or suspected violations of the law.
Along with discussing when HIPAA allows whistleblowers to uses or disclose PHI to report illegal behavior, the Whistleblower Guidance also highlights the following as among the federal laws most likely pertinent for “protecting whistleblowers who take action related to ensuring compliance with” the Executive Order. EO 14187:
- The National Defense Authorization Act of 2013 (“NDAA”) contains a broad whistleblower protection for employees of federal contractors and grantees by providing that “[a]n employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to” certain statutorily defined officials and entities “information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.”
- The False Claims Act (“FCA”) anti-retaliation provisions protect “employee[s], contractor[s], [and] agent[s]” from discharge, demotion, suspension, or any other manner of discrimination “in the terms and conditions of employment” because of lawful acts taken by the individual in furtherance of a claim under the FCA or “other efforts to stop one or more violations of [the FCA]” where an individual must generally show that: (1) he or she is a covered “employee, contractor, or agent”; (2) he or she was engaged in activity protected by the statute; (3) he or she was retaliated against; and (4) the retaliation was “because of” protected activity.
- The Church Amendments prohibits entities that receive certain federal financial assistance from discriminating “in the employment, promotion, or termination of employment of any physician or other health care personnel” or discriminating “in the extension of staff or other privileges to any physician or other health care personnel” because that individual “refused to perform or assist in the performance” of a “lawful sterilization procedure” “on the grounds that his performance or assistance in the performance of the procedure . . . would be contrary to his religious beliefs or moral convictions,” or “because of his religious beliefs or moral convictions respecting sterilization procedures[.]” In addition, 42 U.S.C. § 300a-7(d) provides: “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
- The HIPAA Privacy Rule generally requires HIPAA Entities to have and apply appropriate sanctions against members of its workforce who failed to comply with their privacy policies or procedures or with the requirements of the rule. However, Privacy Rule § 164.530€(1) explicitly excludes the application of sanctions to a member of the HIPAA Entity’s workforce for whistleblowing activity.
2 New Right Of Conscience Investigations Signal Growing Enforcement Risks
OCR’s announcement of its opening of two Right of Conscience investigations sends a clear warning to health care providers and other HHS-funded entities to ensure the defensibility of their own practices and policies for honoring the rights of conscience of their workforce and others they do business with in the course of their operations.
- 1st Right Of Conscience Investigation Announcement On April 14
On April 14, 2025, OCR announced its initiation of its first investigation of a major pediatric teaching hospital for allegedly terminating the employment of a whistleblower nurse for exercising her federally protected rights of conscience. According to the OCR announcement, the pediatric teaching hospital allegedly terminated the employment of a whistleblower nurse for exercising her federally protected rights of conscience. The OCR announcement states that the investigation will examine whether the pediatric hospital violated the Church Amendments by firing a whistleblower nurse after she requested a religious accommodation to avoid administering puberty blockers and cross-sex hormones to children, which she opposed due to religious beliefs about the sterilization effects of these interventions. The announcement also quotes Acting HHS OCR Director Anthony Archeval as stating, “The Department will robustly enforce Federal laws protecting these courageous whistleblowers, including laws that protect health care professionals from being forced to violate their religious beliefs or moral convictions.”
- 2nd Right of Conscience Investigation Announcement On May 12
Less than one month after announcing its first investigation, OCR on May 12, 2025, announced its second right of conscience investigation against a hospital which is part of a larger health care system. According to the announcement, the investigation will focus on how the hospital accommodates its health care personnel who decline to perform or assist in the performance of abortion procedures contrary to their religious beliefs or moral convictions.
The second announcement notes that the investigations are “part of a larger effort to strengthen enforcement of laws protecting conscience and religious exercise.” It also quotes Acting OCR Director Archeval as stating, “The Department is committed to enforcement of our nation’s laws that safeguard the fundamental rights of conscience and religious exercise,” … “Health care professionals should not be coerced into, fired for, or driven out of the profession for declining to perform procedures that Federal law says they do not have to perform based on their religious beliefs or moral convictions.”
The new emphasis of HHS and other agencies on investigation and enforcement of federal protections for rights of conscience and other religious freedoms and other civil rights laws alone should prompt all health care and other HHS-regulated authorities prospectively to reevaluate and update their own practices to strengthen their defensibility under new standards. When assessing the adequacy of their existing policies and practices, health care and other covered organizations also should anticipate the likely need to defend past actions taking into account the Trump Administration’s sharp redirection of interpretations and enforcement away from the policies of the Biden Administration. Since the investigation and enforcement actions announced by HHS and other agencies so far retroactively apply the newly announced Trump-era interpretations and standards to investigations of events and actions that occurred during the Biden Administration, prospective changes to enhance the defensibility of current and future actions alone may not be enough. Rather, health care and other organizations need to prepare for the possibility that HHS or other agencies may require their organization to defend Biden-era events under the new Trump Administration interpretations of the Church Amendments, the CRA, Section 1557, and other federal rules on religious or other Civil Rights law discrimination. In the face of these developments, all health care organizations receiving funding from HHS should review their current and past policies and actions implicating potential exercises of rights of conscience regarding to the treatment of children for gender dysphoria, abortion and other reproductive rights and other areas likely to implicate the Church Amendments or other federally protected religious rights to assess their potential past exposures and mitigate future risks.
The author of this update, Cynthia Marcotte Stamer has decades of experience advising, representing, and defending health care providers, Medicare and Medicaid Advantage and other public and private health plans and plan sponsors, public and private employers, government contractors and grant recipients, educational organizations, child care facilities, employers, technology, data, third party administrators, and other managed care and other health care, defense, technology, life sciences and other clients about Civil Rights Laws and other religious, civil rights and other discrimination, HIPAA and other privacy and data security, False Claims Act and other billing and reimbursement, quality, technology, licensing and accreditation, whistleblower and other workforce, enforcement, governmental affairs, dispute resolution, and other compliance, risk management and operational matters. If you have questions or need advice or help evaluating or addressing these or other compliance, risk management, or other concerns, contact her.
For More Information
We hope this update is helpful. For more information about the or other health or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452-8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on workforce and other risk management and compliance.
Ms. Stamer’s work throughout her career has focused heavily on working with health care, health insurance and managed care, insurance and financial services, defense contractors, and other workforce and data sensitive businesses domestically and internationally on employment, benefits, data and other knowledge use and protection, Federal Sentencing Guidelines and other workforce and heath care management, internal and operational controls, regulatory and public policy and other legal and operational concerns. As a part of this work, she has had extensive involvement in Civil Rights Laws, Section 1557 and other discrimination compliance, training, risk management and defense.
In addition, Ms. Stamer serves as a Scribe for the American Bar Association (“ABA”) Joint Committee on Employee Benefits annual agency meetings with OCR and shares her thought leadership as International Section Life Sciences Committee Vice Chair, and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations.
Author of many highly regarded compliance, training and other resources on cybercrime and other data privacy and security, health and other employee benefits, health care, insurance, workforce and other risk management and compliance, Ms. Stamer is widely recognized for her thought leadership and advocacy in these matters.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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[1] See e.g., Executive Order 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025).
[2] 45 CFR 164.502(j)(1)(i).
[3] 45 CFR 164.501.
[4] 45 CFR 164.501.
[5] 65 Fed. Reg. at 82492.
[6] See 65 Fed. Reg. at 82727
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