HEALTH
Sweeping Healthcare “Conscience” Opt-Out Nixed
Three federal courts fi nd Health and Human Services was making law, not following it
BY ARTHUR S. LEONARD
US District Judge Paul
A. Engelmayer, on November
6, issued an
extraordinarily lengthy
opinion invalidating a regulation
adopted by the Trump Department
of Health and Human Services
(HHS) intended to protect employees
in the healthcare industry who
refuse to provide services based on
asserting their religious beliefs.
Engelmayer’s ruling, from the
Southern District of New York
bench, was just the fi rst of several
such rulings from federal courts
this month.
The lawsuit before Engelmayer
was brought by a coalition of states,
cities, and other parties, including
Planned Parenthood, that stood to
lose substantial federal funding for
their programs if they were found
to violate the regulation, which
imposed stringent compliance requirements.
The plaintiffs argued that the
measure violated the First Amendment’s
prohibition on an “establishment
of religion.” But Engelmayer
rejected an establishment clause
challenge that argued the regulation
was unconstitutional on its
face, instead premising his ruling
on other arguments by the plaintiffs
asserting violations of the Administrative
Procedure Act (APA)
and of the Constitution’s spending
clause and separation of powers requirements.
Engelmayer’s summary of the
regulation — adopted on May 21
of this year and originally set to go
into effect on July 22, though HHS
agreed to a delay after this lawsuit
was fi led — stated that it aimed
to interpret and implement “more
than 30 statutory provisions that
recognize the right of an individual
or entity to abstain from participation
in medical procedures, programs,
services, or research activities
on account of a religious or
moral objection.”
Conscience provisions of this
type typically aim to protect employees
who refuse to participate
in performing abortions, sterilizations,
or assisted suicides, but
some go further, extending to any
medical practice or procedure,
and so could theoretically protect
employees who refuse services to
LGBTQ people based on religious
or moral objections. While some of
the provisions were aimed specifi -
cally at licensed healthcare professionals
who actually perform such
procedures, others could apply to
any employee — such as an orderly,
ambulance driver, or anybody
else employed in a supportive role
— who claim a religious or moral
objection.
Engelmayer also noted a provision
in Title VII of the Civil Rights
Act of 1964 that requires employers
to make a “reasonable accommodation”
to their workers’ religious
practices or beliefs, so long
as such accommodation does not
impose an undue hardship on the
employer. The Supreme Court has
traditionally interpreted that to
mean no more than a “de minimus”
expense.
Early in his administration,
Donald Trump issued an executive
order directing the attorney general
to “issue guidance interpreting
religious liberty protections in
federal law” with the goal of doing
everything permissible under the
Constitution. In October 2017, Jeff
Sessions issued a memorandum
proclaiming that under the First
Amendment’s Free Exercise Clause
an individual has “the right to perform
or abstain from performing
certain physical acts in according
with one’s beliefs,” mentioning
many of the statutory conscience
provisions. HHS proceeded to begin
a ruling-making process translating
Sessions’ dictate into regulations.
Its fi nal rule was issued this
past May.
Engelmayer found that the new
regulation “substantially expands”
on the status quo, applying to
more than 30 conscience provisions
while previous regulation
only included three. The regulation
includes a very broad defi nition of
what employees and entities are
covered, a very broad defi nition
of what counts as religious-based
“discrimination,” and detailed procedures
that healthcare employers
must follow to ensure their workers
know their rights to object or abstain.
Signifi cantly, these employers
must certify their compliance
as a condition of receiving federal
funding under programs such as
Medicare.
The plaintiffs advanced constitutional
arguments on fi ve separate
grounds against the rule, arguing
it was a violation of the establishment
clause, by forcing federal
funding recipients to “conform
their business practices to the religious
practices of their employees,
imposing an absolute duty
to accommodate such practices”;
a violation of the spending clause
because the threat of withholding
all federal funding is “unconstitutionally
coercive,” with conditions
that are “ambiguous, retroactive,
and not reasonably related to the
purpose of HHS’s programs under
which the funds are provided”; a
violation of separation of powers by
empowering the executive branch
to unconstitutionally impound
funds appropriated by Congress;
void because of its ambiguities and
➤ OPT-OUT NIXED, continued on p.21
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