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November 8, 2019

Judges strike down HHS' 'conscience protection' rule as unconstitutional

Daily Briefing

    Two federal judges this week struck down the Trump administration's so-called "conscience protection" rule, which was intended to enforce protections for health care professionals who have moral or religious objections to providing certain medical care, including abortion care and medically assisted death.

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    Background: Final 'conscience protection' rule prompts lawsuits

    The 440-page final rule is designed to help HHS' Office for Civil Rights (OCR) enforce 25 existing statutory protections intended to ensure entities and individuals are not forced to participate in medical procedures that violate their consciences.

    For instance, the final rule would allow doctors, nurses, and other health care workers, including schedulers, to decline to be involved in medical procedures that violate their moral or religious beliefs. Specifically, the final rule would protect such workers if they refuse to provide, participate in, pay for, or offer a referral for services that violate their moral or religious beliefs.

    Under the final rule, health care workers would be able to file complaints with OCR if they believe they have experienced discrimination because they declined to participate in specific medical procedures. OCR said it would enforce the statutory protections in the same manner it enforces other civil rights requirements, such as those prohibiting discrimination on the basis of national origin or the basis of race.

    The final rule originally was scheduled to take effect July 22. However, HHS voluntarily delayed the rule's enforcement until at least Nov. 22, in response to various legal challenges seeking to block the rule. Broadly, the lawsuits claim the final rule exceeds HHS' statutory authority and could jeopardize patients' access to care, particularly among women, racial minorities, low-income individuals, and people who are gay, bisexual, transgender, or queer.

    Federal judges strike down rule as unconstitutional

    U.S. District Judge Paul Engelmayer on Wednesday issued a 147-page decision in a lawsuit brought by states, localities, and health care organizations that struck down the final rule as unconstitutional. Engelmayer wrote that the regulation had "glaring legal defects."

    For example, Engelmayer wrote HHS' argument that the rule is needed because of a "significant increase" in conscience violation complaints "is flatly untrue," which "makes the agency's decision to promulgate the rule arbitrary and capricious."

    Engelmayer also called the final rule coercive, because HHS under the rule could choose to withhold billions of dollars in federal funding from health care providers who do not comply with the regulation. "Wherever the outermost line where persuasion gives way to coercion lies, the threat to pull all HHS funding here crosses it," he wrote.

    Further, Engelmayer wrote that the rule conflicts with federal laws that require hospitals to provide emergency treatment to low-income patients, as well as laws that dictate how employers must accommodate workers' religious beliefs.

    On Thursday, U.S. District Judge Stanley Bastian in a separate case challenging HHS' final rule issued an oral ruling that also struck down the regulation. According to Inside Health Policy, Bastian indicated that he will soon issue a written ruling explaining his reasoning for striking down the final rule.


    New York Attorney General Letitia James (D), who led the lawsuit, said, "The refusal of care rule was an unlawful attempt to allow health care providers to openly discriminate and refuse to provide necessary health care to patients based on providers' 'religious beliefs or moral objections.'"

    The National Family Planning and Reproductive Health Association said, "We are heartened by [the] ruling, and we will not stop fighting to prioritize patients' need for standard medical care over health-care personnels' personal religious or moral beliefs."

    Alexa Kolbi-Molinas, an attorney with the American Civil Liberties Union, said the "decision is an important victory against the … administration's cruel and unlawful attempts to roll back critical patient protections." She continued, "Everyone is entitled to their religious beliefs, but religious beliefs do not include a license to discriminate, to deny essential care, or to cause harm to others."

    According to the Washington Post, HHS officials said they were reviewing the ruling and would not comment on pending lawsuits, and the Department of Justice declined to comment (Abutaleb, Washington Post, 11/6; Stempel, Reuters, 11/6; Sullivan, The Hill, 11/6; Simmons-Duffin/Dwyer, "Shots," NPR, 11/6; Romoser, Inside Health Policy, 11/7 [subscription required]).

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