By Shreya Desai, Staff Writer
On May 2, 2019, the Trump administration and the Department of Health and Human Services (HHS) Office for Civil Rights announced that it would finalize the “conscience” rule (the Rule), which would allow healthcare professionals to deny care based on their own personal beliefs, to go into effect on November 22.[1] The Rule was set to replace the current version enacted in 2011, which was rescinded by the Obama administration on grounds of inadequacy.[2] The Health and Human Services Office for Civil Rights believes that this Rule will protect healthcare professionals and providers, as well as individuals, from having to “provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide…[and] advance directives.”[3] The goal is to prevent healthcare providers from being “bullied” out of the field just because they decline to engage in actions in violation of their own conscience, which would also “foster greater diversity in healthcare.” [4]
While the conscience rule is geared towards protection of healthcare workers, it has also raised constitutional concerns for patients, causing many civil liberties advocacy groups to come out in opposition of the Rule.[5] Vanita Gupta, President and Chief Executive Officer of the Leadership Conference on Civil and Human Rights, is concerned that the Rule will further discriminate against women and transgender patients.[6] Deputy Legal Director of the American Civil Liberties Union (ACLU), Louise Melling stated, “[m]edical standards, not religious belief, should guide medical care.”[7] Clare Coleman, President and CEO of National Family Planning & Reproductive Health Association, also believes that the conscience rule will demoralize programs like the Title X family planning program and generate confusion about the responsibilities of healthcare professionals.[8]
The Rule also prompted several states to file lawsuits in New York and California to stop the Trump administration from allowing the Rule to go into effect.[9] State leaders fear that the federal government, by enacting the conscience rule, will create an environment where open discrimination towards patients is not only permitted, but also condoned, and that this is a “gross misrepresentation of religious freedom.” [10]
In support of the conscience rule, the Trump administration argued that it would provide healthcare workers with the option to steer away from services that violated their conscience. [11] Furthermore, failure to conform to the Rule would result in a loss of federal funding for employers. [12]
Director of HHS’s Office for Civil Rights, Roger Severino has argued that the finalized conscience rule was an attempt to strengthen religious freedom in the healthcare industry because previous administrations did not enforce similar laws in the past. [13] Severino further claimed that the increasing number of complaints of violations of such laws proved the need for this Rule. [14]
On November 6, 2019, Judge Paul Engelmayer of the United States District Court for the Southern District of New York found that HHS reached beyond the scope of its authority, acting “arbitrarily and capriciously” in its promotion of the conscience rule. [15] In coming to this conclusion, Judge Engelmayer noted that Severino’s argument was “demonstrably false. [16] The number of complaints which he cited were actually relatively low and directly related to vaccinations, not the religious beliefs of workers in the industry and their ability to provide care. [17] Only about 6%, or 21 of the 343 the complaints, were found to be related to moral or religious objections, a fact that Judge Engelmayer believes significantly undercuts HHS’s justification for enactment. [18]
The State of California, Santa Clara County, and civil liberties organizations have also joined together to oppose the Rule, filing a similar lawsuit in the United States District Court for the Northern District of California. [19] Although Judge Engelmayer’s ruling in New York seems to be a victory for those against the Rule, it is unclear whether the ruling will have any bearing on the case still pending in California. [20]
As of yet, neither the Trump administration nor HHS has not commented on whether it will continue working towards enactment by further modifying the Rule or whether the conscience rule has been laid to rest.
[1] https://www.hhs.gov/about/news/2019/05/02/hhs-announces-final-conscience-rule-protecting-health-care-entities-and-individuals.html.
[2] Id.
[3] Id.
[4] Id.
[5] https://www.cnn.com/2019/05/02/politics/trump-administration-final-rule-conscience-objections/index.html.
[6] Id.
[7] Id.
[8] Id.
[9] https://thehill.com/policy/healthcare/451007-trump-administration-delays-implementation-of-conscience-protection-rule.
[10] Id.
[11] https://www.npr.org/sections/health-shots/2019/11/06/776765601/judge-scraps-conscience-rule-protecting-doctors-who-deny-care-for-religious-reas.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
