Judge Strikes Down HHS Rule Protecting Healthcare Professionals Who Decline to Perform Abortions

Photo Credit: Vidal Balielo Jr./Pexels

MANHATTAN — A federal judge nominated to the bench by then-President Barack Obama has struck down a rule recently issued by the Department of Health and Human Services (HHS) that sought to protect the conscience rights of medical professionals and others who have objections to abortion or physician-assisted suicide.

Judge Paul Engelmayer of the Southern District of New York concluded that the new rule too rigidly places states at jeopardy of losing federal funding for non-compliance with the conscience protections.

“The rule … newly conditions all HHS funding, regardless of source, on compliance with the Conscience Provisions. And, by adding the substantive conditions announced in the rule, the rule exposes a state to a heightened risk, in the middle of a funding period, that funds previously allocated will be withheld or terminated,” he wrote.

“A state that has organized its programs (e.g., its Medicaid program) in anticipation of a promised outlay of funds could find all its HHS funding streams cut off for its failure to adapt,” Engelmayer worried. “The state, however, had no way to know at the time it accepted such funds that HHS would later claim the right to close these spigots based on a breach of a Conscience Provision.”

He also determined that the government could not provide enough proof that the rule was necessary.

“HHS, in this litigation, admitted that only a tiny fraction of the complaints that its rule invoked as support were even relevant to the Conscience Provisions,” Engelmayer wrote. “HHS’s central factual claim of a ‘significant increase’ of complaints of Conscience Provision violations is flatly untrue. This alone makes the agency’s decision to promulgate the rule arbitrary and capricious.”

Read the ruling in full here.

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As previously reported, HHS issued its “Conscience Rights in Health Care” rule in May, which was to have taken effect on Nov. 22.

“This rule ensures that healthcare entities and professionals won’t be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life,” Office of Civil Rights (OCR) Director Roger Severino said in a statement. “Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law.”

The updated rule provided clarification on existing federal conscience protection laws as passed by Congress, and required healthcare entities to keep records documenting compliance with such statutes, as well as to to submit certifications to HHS that they are indeed following the law.

OCR said that the rule was necessary as some remain confused about whether or not federal or state laws require individuals to participate in abortions or sterilizations, despite the existence of protections such as the Weldon Amendment and the Coats-Snowe Amendment.

“For instance, some advocacy organizations have filed lawsuits claiming that federal or state laws require private religious entities to perform abortions and sterilizations despite the existence of longstanding conscience and anti‐discrimination protections on this topic,” the department outlined in its rule explanation.

“A patient also sued a secular public hospital for accommodating doctors’ and nurses’ religious objections to abortion in alleged violation of a state law, Washington’s Reproductive Privacy Act,” it stated.

However, several lawsuits were soon filed against the new rule, including a legal challenge led by New York Attorney General Letitia James. More than a dozen other states joined the complaint, including Pennsylvania, New Jersey, Vermont, Massachusetts, Michigan, Minnesota, New Mexico, Nevada, Colorado and Oregon. California filed its own lawsuit separately.

“Health care is a basic right that should never be subject to political games. Once again, the courts have blocked the Trump Administration from implementing a discriminatory rule that would only hurt Americans,” James said in a statement on Wednesday.

“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,’” she added. “We will continue to use every tool at our disposal to protect access to health care and protect the rights of all individuals.”

However, religious liberties organizations, such as Alliance Defending Freedom (ADF) expressed disappointment following Engelmayer’s ruling, noting that protecting the rights of all must include those with religious convictions — and it is people of faith who are rather being discriminated against.

“Medical professionals should never have to sacrifice the core convictions that led them to enter medicine, in order to serve in that very field. This HHS Conscience Rule clarifies and implements more than 30 laws protecting conscience rights in health care, including some protections that have been in effect for decades,” said legal counsel Denise Harle in a statement.

“The district court’s order vacating the rule strips the federal government of its ability to meaningfully interpret and apply these critical conscience protections ensuring that health care workers can live and work consistently with their consciences, without fear of discrimination,” she lamented.


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