Donald Trump’s “denial of care” rule, which would have allowed health care professionals to refuse care based on their religious beliefs and still receive federal funds, has been struck down in court.

Lisa Keen  |  Keen News Service
lisakeen@mac.com

 

UPDATE: Two days, two judges, two rulings both striking down Denial of Care rule. As per a Lambda Legal press release: ” Today [Thursday, Nov. 7], U. S. District Court for the Eastern District of Washington Judge Stanley A. Bastian struck down the Denial of Care Rule proposed by the U.S. Department of Health and Human Services (HHS), becoming the second judge in two days to vacate the rule, recognizing its discriminatory and unconstitutional scope. Lambda Legal, Americans United for Separation of Church and State, the Center for Reproductive Rights and the County of Santa Clara are currently litigating a similar case challenging the same rule in the U.S. District Court for the Northern District of California.”

A federal district judge in Manhattan on Wednesday, Nov. 6, struck down “in full” a regulation forged by the Trump administration that would have allowed health care providers receiving federal funds to cite “religious or moral objections” in order to deny services to certain patients.

While the services most frequently identified as targets of the rule were abortion, assisted suicide and sterilization, Lambda Legal said the proposed rule was “clearly aimed at restricting healthcare for LGBTQ people and women seeking reproductive health care.”

“The decision today walks through how dishonest the Trump administration has been in sending out rules that completely disregard people’s civil rights, causing people to be harmed, even die,” said Camille Taylor, director of constitutional litigation for Lambda Legal.

Lambda Legal is one of several groups that filed a legal challenge against the so-called “Denial of Care Rule” struck down this week. The rule was promulgated by the Trump administration in May and was originally set to take effect in July. The rule never went into effect, however, due to lawsuits challenging its constitutionality, including lawsuits in Washington, D.C., Santa Clara, Chicago, Allentown and Hartford.

The formal title of the “Denial of Care” rule is the “Protecting Statutory Conscience Rights in Health Care.” It is separate from another Trump administration rule change at the U.S. Department of Health and Human Services proposed Nov. 1. Both rule changes are aimed at enabling people with religious objections to exercise those objections in the health services arena.

The Denial of Care rule struck by the court decision sought to allow any health care provider or person working at a health care organization to withhold any medical procedure, including emergency care, if they claimed a “religious or moral objection” to providing that care.

U.S. District Court Judge Paul Engelmayer (an Obama appointee) ruled that HHS exceeded its authority in promulgating the rule because it gave new “substantive content” to existing law. He said that, while Congress gives agencies the authority to make rules to carry out federal laws, those rules must be related to “governing internal department affairs,” not creating new “substantive legal obligations … .”

Engelmayer ruled that the HHS rule is “quintessentially arbitrary and capricious” in its violation of key provisions of Title VII of the Civil Rights Act that govern an employer’s accommodation of an employee’s religious beliefs. And he said the rule violates another federal law — the Emergency Medical Treatment and Labor Act — that requires hospitals to provide care to any patient suffering from an emergency medical condition.

That law, said Engelmayer, “does not include any exception for religious and moral refusals to provide emergency care.”

Engelmayer noted that the reason proffered by HHS for creating its religious objection rule was a “significant increase” in complaints. Engelmayer called that claim “flatly untrue.” Of the 358 complaints HHS said it received starting in November 2016, shortly after Trump was elected, only 21 were “potentially related” to the rule, a number the judge said was “so small as to be asymptotic to zero.”

The violations committed by the HHS rule, said the judge, “are numerous, fundamental and far-reaching.”

Lambda Legal Senior Attorney Jamie Gliksberg said the “Denial of Care Rule” struck by the ruling this week was “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,” Gliksberg said.

The ruling came in New York v. HHS, litigation that consolidated three lawsuits in U.S. District Court for the Southern District of New York. The lead lawsuit was initiated by New York State and 18 other states (including Illinois, Massachusetts, and Michigan), plus Washington, D.C., Chicago, New York City and Cook County. The other two lawsuits were filed by Planned Parenthood and by the National Family Planning and Reproductive Health Association.

In his 147-page opinion, Judge Engelmayer took pains to lay out the history of federal regulations allowing for health care providers to object to services on “religious or moral beliefs.”

The Denial of Care Rule, he noted, originated with an executive order from President Trump in May 2017. That executive order directed the U.S. Attorney General to “issue guidance interpreting religious liberty protections in federal law.” As a result of that executive order, then-U.S. Attorney General Jeff Sessions issued a memo in October 2017, directing all federal agencies and departments to issue regulations complying with the executive order.

And in January 2018, HHS issued its proposed rule change requiring any entity receiving federal funds to certify that it will comply with the Conscience Rule. Entities that refuse to certify its compliance or that violate the Conscience Rule could have their federal funding terminated.

“The rule stands to affect a large portion of the economy,” wrote Engelmayer. “HHS itself classifies the rule as ‘economically significant,’ meaning it will have an annual economic effect of more than $100 million. HHS estimates that it will cost around $1 billion to implement the rule over its first five years, not including public health costs… .

“The rule is also politically significant,” said Engelmayer. “It applies across the vast health care industry. It applies to a host of funding recipients, public and private. It sets behavioral standards for those recipients.”

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