US District Judge Paul A. Engelmayer of the Southern District of
New York.
➤ OPT-OUT NIXED, from p.20
inconsistences with other federal laws, which
invite arbitrary enforcement; and a violation of
patients’ due process rights to privacy and liberty,
in particular by interfering with their access
to abortions and other procedures to which
some healthcare workers object.
Engelmayer rejected the government’s argument
that the rule was merely a “housekeeping”
measure consolidating existing statutory conscience
provisions. Instead, he found, it made
substantive changes in the law — “upending
the legal status quo with respect to the circumstances
and manner in which conscience objections
must be accommodated” and imposing
a maximum penalty of all HHS funding being
terminated. He noted, for example, that a receptionist
might refuse to schedule a patient for a
procedure to which they had ethical objections.
In deciding that the regulation was not a violation
of the establishment clause on its face —
a conclusion that would have required fi nding
that all of its provisions are unconstitutional in
all their potential applications — Engelmayer
acknowledged that it could be challenged “as
applied” in specifi c situations.
The judge instead found that HHS violated
the Administrative Procedure Act by adopting a
regulation that went beyond the statutory policy
decisions expressed by Congress. The rule,
Engelmayer concluded, went over the line into
legislation.
The sheer scale of the regulation’s potential
impact played a large part in his decision, with
the judge writing that it “put in jeopardy billions
of dollars in federal healthcare funds. In fi scal
year 2018, for example, the State Plaintiffs received
$200 billion in federal healthcare funding.
New York alone received $46.9 billion.”
Engelmayer also noted the rule’s political signifi
cance in taking positions beyond those actually
expressed by Congress on controversial
issues such as abortion and assisted suicide.
“In a case involving economic consequences
and political dynamics on such a scale,” he
wrote, “the Supreme Court teaches that ‘we expect
Congress to speak clearly’ were it to delegate
rulemaking authority.”
Engelmayer also concluded that HHS skirted
the detailed procedures set out in the APA. The
two most important fl aws he identifi ed were
the agency establishing conscience provisions
at odds with specifi c statutory language under
Title VII workplace protections that addresses
religious objections and its provisions also at
odds with the lack of any conscience opt-outs
in federal legislation regarding the provision of
emergency services.
Engelmayer also noted that an agency adopting
a rule that changes the law is required to
document the need for the change. Here, HHS
➤ OPT-OUT NIXED, continued on p.22
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