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May 30, 2019

Civil rights groups file suit to stop HHS' 'conscience' rule

Daily Briefing

    A coalition of civil rights organizations on Tuesday filed a lawsuit that seeks to block a final rule 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 suicide, the Washington Post reports.

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    The latest suit follows one filed last week by a group of nearly two dozen states and localities that argued the final rule illegally prioritizes health care providers' personal beliefs over patients' needs.

    Final rule details

    The 440-page final rule, which HHS first proposed in January 2018, 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 will 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 will 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 will be able to file complaints with OCR if they believe they have experienced discrimination because they declined to participate in specific medical procedures. ORC will investigate the alleged discrimination and determine the appropriate enforcement action.

    The final rule will apply to individuals and entities that receive funds through programs administered or funded either fully or partially through HHS. Under the final rule, providers who do not comply with the regulations will lose federal funds.

    OCR said it will 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. For instance, OCR will have the authority to investigate potential rule violations, make referrals about rule violations to the Department of Justice, and remediate the effects of rule violations, possibly by withholding federal funds.

    The final rule is scheduled to take effect July 22.

    Lawsuit details

    The lawsuit, which was filed Tuesday in the U.S. District Court for the Northern District of California, argues the final rule is unconstitutional and exceeds HHS' statutory authority.

    While HHS says the rule is intended to help enforce existing regulations, the plaintiffs argue that it actually "creates a wholly new regime that elevates religious objections over all other interests and values."

    The plaintiffs allege that the rule "violates patients' rights to privacy, liberty, dignity, and autonomy" by creating an environment that unduly burdens a patient's access to medical care. In particular, plaintiffs allege the rule violates patients' Fifth Amendment rights to liberty and privacy "by impermissibly advancing the religious beliefs of individual employees over the constitutional rights of patients."

    The plaintiffs also argue the final rule leaves transgender individuals particularly at risk of discrimination and "chill[s] constitutionally protected First Amendment activity," such as a patient's ability to disclose or express their sexual orientation.

    In addition, the groups argue that the rule could create "mass confusion among health care providers," which could drive some providers to stop offering reproductive and LGBTQ care, jeopardizing access to care for millions of patients.

    The latest lawsuit was filed by Lambda Legal, Americans United for Separation of Church and State, and the Center for Reproductive Rights. Other plaintiffs include Santa Clara County in California, the Los Angeles LGBT Center, and Whitman-Walker Health, which is based in the District of Columbia.

    Jamie Gliksberg, senior attorney with Lambda Legal, said this lawsuit differs from the other because they are "bringing these claims on behalf of health care providers." She said, "This rule erodes trust between patients and providers" by carving away the balance providers have sought to strike between a patient's right to care and a provider's right to decline services such as abortion, medically assisted suicide, and sterilization.

    James R. Williams, county counsel for Santa Clara County, said the rule could complicate emergency services the county provides, as employees are currently required to continue providing emergency care until a replacement can take over. He said, "Under our current policies, we require advanced notice about refusing to participate in certain care" (Eunjung Cha, Washington Post, 5/28; Weixel, The Hill, 5/28; Raman, CQ News, 5/28 [subscription required]).

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