What happened with the HHS rule and conscience provisions in New York?

November 8, 2019

On Nov. 6,  in the U.S. District Court for the Southern District of New York, Judge Paul Engelmayer struck down an HHS rule titled, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.” The HHS rule provided conscience protections for medical professionals that object to performing procedures or writing prescriptions that violate their sincerely held moral or religious beliefs. For example, the HHS rule seeks to ensure that medical professionals who object on moral or religious grounds to performing abortions are protected from professional retaliation, as happened recently in Vermont. The plaintiffs in the consolidated cases represented before the district court argued that the HHS rule was discriminatory and restricted medical care in an unconstitutional manner.

In his 147-page opinion on the case, Engelmayer takes aim at the “conscience provisions” in the HHS rule. In particular, he cites section 706(2)(A) of the Administrative Procedure Act, which instructs courts to “invalidate any agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In this case, the agency is HHS and the action is the implementation of a rule that the court does not believe that HHS has the authority to make. 

Engelmayer makes this clear in his opinion, writing, “For purposes of these Conscience Provisions, HHS lacked the authority to define the statutory terms addressed by the Rule (“discriminate or discrimination,” “assist in the performance,” “health care entity,” and “referral or refer for”) or to promulgate the assurance and certification requirements, as each of these was an act of substantive rulemaking.” The opinion goes further, claiming that the HHS rule “conflicts with Title VII of the Civil Rights Act of 1964, as amended in 1972 to prescribe a framework governing the circumstances under which an employer must accommodate an employee’s religion-based objections; and (2) in its application to emergencies, it conflicts with the 1986 Emergency Medical Treatment and Labor Act.” 

Essentially, the U.S. District Court for the Southern District of New York believes that the HHS rule was promulgated in an unjustifiable manner that violated the Administrative Procedure Acts, the Civil Rights Act, and the Emergency Medical Treatment and Labor Act, while purportedly ignoring the U.S. Constitution’s article on the Separation of Powers and the Spending Clause. The result of Engelmayer’s decision vacates the HHS rule in its entirety. 

Christians must not be indifferent to matters regarding freedom of conscience because the conscience belongs to God alone.

When the rule was originally introduced, Roger Severino, the director of the HHS’s Office for Civil Rights, argued that “this rule ensures that healthcare entities and professionals won't be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life.” Others like Dr. Regina Frost, who practices medicine in New York and leads a “network of female healthcare professionals called Women Physicians in Christ,” welcomed the HHS rule, which aimed to protect doctors in states that refused to comply with the HHS rule. 

With the rule vacated and HHS’ next legal steps pending, doctors in states that sued HHS are now at risk for obeying their consciences. Engelmayer’s decision, which claims to strike down the HHS rule partially because of it being discriminatory, has now discriminated against the medical professionals who cannot, for moral or religious reasons, perform abortions or gender-reassignment surgeries. 

While the decision to not protect the consciences of medical professionals will almost certainly be appealed or reassessed by HHS, Engelmayer’s vacating of the conscience provisions rule is a devastating blow to providers and patients alike.

HHS did not rule that no medical professionals were allowed to provide certain procedures, but rather that the freedom to abstain from such procedures in light of their constitutional rights under the First Amendment should be honored. People of faith in the medical community should not be forced to choose between their religious beliefs and providing appropriate care to their patients. Christians must not be indifferent to matters regarding freedom of conscience because the conscience belongs to God alone.

Casey B. Hough

Casey B. Hough is lead pastor at Copperfield Church in Houston, Texas, and a Ph.D. student at New Orleans Baptist Theological Seminary. He also blogs regularly at www.CaseyHough.com. Casey and his wife, Hannah, have three sons and two daughters.  Read More