A federal judge issued a decision Wednesday stating that a Trump administration rule allowing health care workers to refuse to provide medical services that violate their religious or moral beliefs is unconstitutional and invalid.
The Denial of Care Rule (officially called “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority”) would allow any health care worker—including doctors, nurses, EMTs, administrators, janitors, and clerical staff—to deny medical treatment, information, and services to patients because of the worker’s personal religious or moral beliefs, even if their medical institution takes federal funds like Medicare or Medicaid. The language of the rule focuses on abortion, sterilization, and assisted suicide, but its impact could be even broader, covering pediatric care for children of LGBTQ parents, fertility treatments for LGBTQ people, treatment or prevention for HIV and AIDS, hormone therapy treatment, and more. The rule was finalized in May and set to go into effect November 22.
Judge Paul Engelmayer of the United States District Court for the Southern District of New York said in his decision that the Rule violated the Separation of Powers and the Spending Clause of the Constitution of the U.S. Constitution and was “arbitrary and capricious.” It would “unavoidably would shape the primary conduct of participants throughout the health care industry. It would upend the legal status quo with respect to the circumstances and manner in which conscience objections must be accommodated.” He added that, “The Rule is contrary to law,” because it “conflicts with Title VII of the Civil Rights Act of 1964,” in particular with 1972 amendments that govern “the circumstances under which an employer must accommodate an employee’s religion-based objections.” It also conflicts with the 1986 Emergency Medical Treatment and Labor Act.
The rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.
The Rule, he explained, also violated the Administrative Procedure Act (APA), which governs the rulemaking process of government agencies, because the U.S. Department of Health and Human Services (HHS) “did not have substantive rule-making authority” to promulgate such a rule. Although HHS tried in its legal arguments “to preserve parts of the Rule that are not compromised by legal deficiencies,” Engelmayer concluded (rather wryly, it seems) that, “The rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”
He concluded, “The Court accordingly vacates HHS’s 2019 Rule in its entirety.”
We should note, though, that the Rule is also being considered in the U.S. District Court for the Northern District of California, as I explained the other day. Let’s hope that court also finds the same thing. If not, however, and if the discrepancy continues through the appeals court level, I assume the matter could end up in the Supreme Court—although legal experts have yet to weigh in on this.
Keep in mind, too, that this is only one of (at least) two HHS rules that could have a negative impact on LGBTQ families and others. On November 1, HHS issued a new rule that allows taxpayer-funded foster care and adoption agencies to discriminate on the basis of sex, sexual orientation, gender identity, and religion. In fact, it would let all recipients of HHS grants engage in such discrimination, which could impact programs dedicated to youth homelessness, HIV, STI, substance abuse prevention, and more.
Still, this is undoubtedly a win, and LGBTQ advocates are right to celebrate. The Rev. Stan J. Sloan, CEO of Family Equality, said in a statement, “The so-called ‘Conscience Rule’ was part of the Trump Administration’s broader attempt to allow health care providers and other programs funded by HHS to prioritize their personal religious beliefs over the needs of the Americans they should be serving,” said “Health care is a basic right and this rule would have allowed health care providers to discriminate openly, placing at risk the ability of millions of Americans to access critical services, including over 11 million LGBTQ+ people and their children.” [That is, over 11 million LGBTQ+ people, including the approximately 20 percent of whom are parents.]
Lambda Legal Senior Attorney Jamie Gliksberg, also noted in a statement, “In his decision to completely eliminate the Denial of Care Rule, Judge Paul A. Engelmayer has likely saved countless lives. Courts across the country are seeing the Denial of Care Rule for what it is, an egregious violation of the civil rights of and a direct attack on the lives of women, LGBT people, religious minorities and many others. The Denial of Care Rule was deeply rooted in animus against some of our most marginalized and vulnerable communities, and that has no place in our society. We are thrilled about today’s decision.”
UPDATE, November 7, 4:50 p.m.: A second federal judge, this time Judge Stanley A. Bastian in the U. S. District Court for the Eastern District of Washington, has struck down the Denial of Care Rule as unconstitutional.