Update, Nov. 7: In a second case, on Thursday, Judge Stanley A. Bastian of the U.S. District Court for the Eastern District of Washington has vacated the “conscience rule,” Washington state Attorney General Bob Ferguson has announced.
A judge on Wednesday blocked a federal rule that would have allowed individual healthcare workers as well as healthcare organizations to decline to provide care that conflicted with their religious and moral beliefs or mission.
The “conscience rule” had been set to go into effect Nov. 22.
In a 147-page opinion and order, U.S. District Judge Paul A. Engelmayer of the Southern District of New York vacated the rule entirely, saying it was unconstitutional.
The Department of Health and Human Services, he said, exceeded its authority and “acted arbitrarily and capriciously” in publishing it. The department’s violations of federal law were “numerous, fundamental and far-reaching,” Engelmayer wrote.
The rule, the judge said, would have imposed “ambiguous and retroactive conditions” on the states and would have been “impermissibly coercive” given that the government potentially could have withheld hundreds of billions of dollars in funding that “enables a wide range of essential healthcare programs, including ones on which vulnerable residents rely.”
Additionally, he said, “HHS’s stated justification for undertaking rulemaking in the first place — a purported ‘significant increase’ in civilian complaints relating to the Conscience Provisions — was factually untrue.”
Among providers that could have been affected by the rule were assisted living communities that accept payments from Medicaid, because the federal government could have withheld funds to organizations deemed not to be in compliance. Skilled nursing facilities and other long-term care facilities accepting federal funding also could have been affected.
The final rule made several references to abortion but also referred to advance directives, “assisted suicide, euthanasia, or mercy killing,” “compulsory healthcare or services generally, and under specific programs for hearing screening, occupational illness testing; vaccination and mental health treatment” as well as “certain requirements under Medicare and Medicaid that may burden their exercise of their religious beliefs regarding medical treatment.” Elder advocacy group SAGE also noted that some feared that the rule could make it easier to discriminate against LGBTQ individuals.
The ruling came in response to three consolidated lawsuits, one of which had been filed by 19 states, the District of Columbia and three local governments.
New York Attorney General Letitia James, who led plaintiff efforts related to that lawsuit, in a statement Wednesday said: “Healthcare is a basic right that should never be subject to political games. …We will continue to use every tool at our disposal to protect access to healthcare and protect the rights of all individuals.”
Federal officials said in a statement that HHS and the Department of Justice were reviewing the decision and would not comment on pending litigation.
The judge left the door open for HHS to issue a new rule.
“The Conscience Provisions recognize and protect undeniably important rights,” he wrote. “The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions. In the future, however, the agency must do so within the confines of the APA [Administrative Procedure Act] and the Constitution.”
See previous coverage related to the rule under “Related Articles,” below.