A federal judge has thrown out a sweeping Trump administration rule that would have allowed healthcare providers, plans and individual staffers to refuse to provide services that violate their conscience.
In a nationally binding decision Wednesday, U.S. District Judge Paul Engelmayer in Manhattan ruled that HHS, which finalized the rule in May, lacked statutory authority to issue the rule and that it violates the Civil Rights Act of 1964 as well as the Emergency Medical Treatment and Labor Act. HHS also did not comply with proper rule-making procedures under the Administrative Procedure Act, he wrote.
The rule, called "Protecting Statutory Conscience Rights in Health Care," was set to take effect Nov. 22. It would have cut off federal funding to any healthcare organization that did not allow its staffers to opt out of services that are contrary to their religious beliefs or moral convictions. It also would have broadened and strengthened various federal conscience protection laws.
Services that individual providers could refuse to participate in included abortion, ectopic pregnancy care, contraception, gender dysphoria treatment, vaccine administration, physician aid in dying and other services.
The rule covered ancillary personnel such as clerks, technicians, medical assistants, ambulance drivers and other nonprofessional staffers, as well as physicians, nurses and other medical professionals.
In his 147-page decision, Engelmayer wrote that HHS' violations of the rule-making process are "numerous, fundamental and far-reaching," and that the agency lacked substantive rule-making authority on three of the five main conscience provisions in the rule.
Similar challenges to the rule are pending in federal courts in California and Washington.
HHS and the U.S. Justice Department said they are reviewing the opinion and declined to comment.
The rule was part of a broader Trump administration effort to restrict abortion access and expand the rights of individuals to refuse to deliver services on the basis of religious objections.
A Trump administration official had argued when the rule was issued that it was needed so that healthcare organizations and individuals "won't be bullied out of the healthcare field because they decline to participate in actions that violate their conscience."
The National Family Planning & Reproductive Health Association and Public Health Solutions, the plaintiffs in the suit, said the rule would force providers to employ individuals who refuse to perform essential job functions, without regard for the well-being of patients or public safety.
For instance, they argued, a hospital receptionist could refuse to schedule an appointment for a patient seeking gender dysphoria treatment, or an orderly could refuse to transfer a patient to the operating room for an emergency abortion.
The rule contained no exception for emergencies. Last month, when a Justice Department lawyer was asked in federal court in California whether the rule would allow an ambulance driver to refuse to transport a woman to the hospital for an emergency abortion, he reportedly said that would depend "on the facts and circumstances of each case."
"By empowering providers to put religious beliefs ahead of quality of care, this rule is a direct threat to public health, particularly for vulnerable populations," said Lisa David, CEO of Public Health Solutions, in a written statement.
HHS said the rule was necessary because of a proliferation of complaints from healthcare workers that their long-established right to refuse to participate in procedures that violate their conscience had been violated. It originally claimed it had received 343 complaints during fiscal 2018.
In August, Roger Severino, director of HHS' Office for Civil Rights, said the administration has received "hundreds" of conscience complaints per year, far more than in the past, because his office is getting the word out and enforcing the law more vigorously.
But under Engelmayer's questioning during oral arguments last month, an HHS attorney conceded that there only had been about 20 complaints. In his opinion Wednesday, the judge wrote that HHS' stated justification for the rule—a significant increase in complaints relating to the conscience clause—was "factually untrue."
Healthcare organizations and legal experts worried that the rule would upset the delicate balance between accommodating individual providers' moral beliefs and protecting the welfare of patients, including guarding against discrimination.
Under the rule, employers would have to staff around doctors, nurses and other employees who object to certain services, and wouldn't be able to remove them from a department where those services are common, as in a pediatric clinic providing vaccines.
Engelmayer said "the conscience provisions recognize and protect undeniably important rights," and that his decision allows HHS to consider new rules on those provisions, but that needs to happen within the confines of the law.
