Sensing a looming religious freedom conflict after the U.S. Supreme Court invalidated all state abortion regulations in 1973, Congress acted to protect the ability of healthcare workers to decline to participate in abortion and sterilization procedures at odds with their convictions.

This important protection has been supplemented by subsequent religious freedom protections of medical professionals in other laws including the Affordable Care Act.

This approach – legislators acting to prevent potential conflicts by enacting protective statutes – is likely the most fruitful way to protect religious freedom. Though other actors, including courts, have an essential role to play as well.

There is a wrinkle, though, in this process. Sometimes it is not enough to enact a law – especially at the federal level – since the work of enforcing laws is done by administrative agencies. For a number of reasons, ranging from complexity of issues addressed by legislation to a desire in Congress to pass difficult decisions on to others, enacting legislation can be just the first step in a longer process.

That process typically involves administrative agencies proposing rules for how the laws enacted by Congress are to be enforced. A well-known example in the religious freedom realm followed the enactment of the Affordable Care Act in 2009. One of the provisions of that law delegated to the Department of Health and Human Services the authority to designate some medical services that would be provided free to employees. HHS included in this benefit drugs that some religious employers believed acted as abortifacients. This led to litigation involving the owners of Hobby Lobby and a Supreme Court decision holding that HHS needed to do more to accommodate religious employers.

One feature of the regulatory process is that it can change, sometimes dramatically and often, with the change in presidential administrations.

Currently, HHS is considering adopting a new rule that would implement the religious freedom statutes (the post-Roe statutes as well as the ACA) aimed at protecting healthcare workers. This would be the third significant change since 2011.

The proposal makes some welcome changes. It would “expand the category of ‘federal health care provider conscience protection statutes’ covered by the rule,” meaning it would give the department specific authority to investigate violations of some federal healthcare religious freedom protections that are currently not included in the scope of the department’s work.

Also positive is that the proposal would delegate to the Office of Civil Rights at HHS the ability to receive and investigate complaints about violations of the law.

The proposed rule would present challenges as well. The underlying premise of it is that HHS needs to “respect” a “balance” supposedly struck by Congress. That purported balance is access to abortion and other procedures that raise moral concerns for medical professionals on the one hand, and the ability of medical professionals to act consistent with faith and other conscientious objections to such procedures on the other hand.

Acting from this premise, the proposal removes specific definitions of prohibited practices from the underlying rule. This would leave regulated healthcare providers with no clear direction of what they must to do to ensure they do not violate federal conscience protection laws. It would also leave medical professionals with no clear idea of their rights.

When Congress began enacting the laws the administrative rule is designed to enforce, it was not trying to secure greater access to abortion, sterilization and assisted suicide. Rather, Congress was trying to ensure that the Supreme Court’s decision that states could not regulate abortion would not result in individuals being forced to participate in practices at odds with their faith or conscientious commitments. This intention was consistent, of course, with the core constitutional principle of free exercise of religious belief.

Thus, any necessary balance had already been struck by Congress. The laws enforced by this regulation clearly protect those who have conscientious objections to participating in abortion and practices at odds with their beliefs. In enacting these protections, Congress did not include provisions that would dilute the protections in the interest of making abortion or any other procedure more broadly available. Rather, Congress assumed that these practices would be available (as they are currently) but that no one with conscientious objections should be forced to participate in them.

Thus, the regulation needs only to implement the intent of Congress, not dilute it. That enforcement can only be effectively secured by clear guidance as to what the laws require. The current regulation includes clear guidance through its definitions and delineations of relevant law that should not be removed. Vague guidelines and notices could prevent those whom the law is intended to protect from exercising their long-recognized rights.

State regulators are often less likely to make significant policy decisions absent clear legislative direction than are federal regulators. The states, though, can learn some things from watching their federal counterparts. Vague rules, changed with each new administration, can create confusion and a sense that political considerations are more important than the rule of law. Not all examples need to be good to learn from them.