WASHINGTON — Numerous state attorneys general and 78 members of Congress have signed on to amicus briefs supporting a new rule issued by the U.S. Department of Health and Human Services (HHS) that aims to protect the conscience rights of medical professionals who have objections to assisting with abortions or physician-assisted suicides.
HHS was sued last year by New York Attorney General Letitia James, who led a coalition of nearly two dozen other states, as she asserted that the “Conscience Rights in Health Care” rule is discriminatory and “a gross misrepresentation of religious freedom.” The abortion giant Planned Parenthood and the National Family Planning and Reproductive Health Association sued to challenge the protections as well.
In November, a federal judge struck down the measure, opining that the rule is unnecessary and too rigidly places states at jeopardy of losing federal funding for non-compliance with the conscience protections.
“The Department’s regulations are a recent chapter in this country’s ‘long history of providing protections … on the basis of religious beliefs and moral convictions,'” wrote Ohio Attorney General David Yost in a recent amicus brief to defend the rules as the case now rests in the hands of a federal appeals court.
“That history actually begins with the states. By the time the federal Constitution was ratified, all but one of the original thirteen states already had constitutional protections for religious freedom,” he noted.
“Because the challenged regulations expand the opportunities for Americans to exercise their inherent natural right to liberty of conscience, the amici states support the regulations’ implementation.”
Those joining him in the brief include Attorneys General Steve Marshall of Alabama, Christopher Carr of Georgia, Daniel Cameron of Kentucky, Timothy Fox of Montana, Douglas Peterson of Nebraska, Jason Ravnsborg of South Dakota, Mark Brnovich of Arizona, and Sean Reyes of Utah.
“Congress has a longstanding bipartisan tradition of enacting legislation that promotes the rights of those whose conscience precludes participation in certain controversial actions,” reads a separate brief signed by 78 members of Congress.
“Consistent with that tradition, Congress has repeatedly passed legislation shielding individuals and organizations from being forced to violate their consciences by performing, participating in, or referring patients for certain procedures, including abortion, sterilization, and physician-assisted suicide. … These laws recognize our society’s deep disagreement over these important issues and, consequently, aim to prevent recipients of federal funds from infringing on First Amendment conscience rights.”
It contends that Congress has made clear for half a century that both governmental and private entities cannot receive federal funding if they discriminate against those that refuse to perform or assist with controversial procedures.
“HHS should be allowed to enforce this statutory prerogative,” the brief argues.
Signees include Sens. James Lankford, R-Okla.; Tom Cotton, R-Ark.; Kevin Cramer, R-N.D.; Tim Scott, R-S.C.; Ben Sasse, R-Neb.; James Risch, R-Idaho, and Cindy Hyde-Smith, R- Miss., along with Reps. Ralph Abraham, R-La.; Andy Harris, R-Md.; Larry Bucshon, R-Ind.; Neal Dunn, R-Fla.; Mark Green, R-Tenn.; John Joyce, R-Pa.; Roger Marshall, R-Kan.
As previously reported, HHS issued the “Conscience Rights in Health Care” rule last May, which was to have taken effect in November 2019.
“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, as did the Planned Parenthood Federation of America and the National Family Planning and Reproductive Health Association.
“The federal government is giving health care providers free license to openly discriminate and refuse care to patients — a gross misinterpretation of religious freedom that will have devastating consequences on communities throughout the country,” James said in a statement. “When the health of our residents is at stake, and the safety of vulnerable populations hang in the balance, we cannot rest until this ‘health care refusal’ rule is stopped.”
She opined that the rule would especially adversely affect those who identify as homosexual and transgender.
In November, Judge Paul Engelmayer, an Obama nominee, struck down the rule in finding that it could pull the rug out from under states that had anticipated federal funding but ended up losing it due to noncompliance with the new regulation.
“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.”
“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,” he also 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.”
The case is now on appeal before the Second Circuit Court of Appeals. In addition to numerous state attorneys general and members of Congress, former Sen. Daniel Coats and Rep. David Weldon — after which the Coats-Snowe and Weldon Amendments are named — themselves have filed an amicus brief in support of the HHS protections.