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Conscience Magazine

Courts Deem HHS Conscience Rule Unconstitutional

By Conscience December 12, 2019

A federal judge in the Southern District of New York vacated implementation of a proposed Health and Human Services (HHS) rule that would have expanded the ability of healthcare providers to refuse care for “religious, moral, ethical, or other reasons,” denying federal funding to any entity that failed to comply with the rule. New York’s attorney general argued that the rule would create “irrational, untenable, and potentially cruel situations,” by requiring state and local governments to “grant to individual health providers the categorical right to deny lawful and medically neces­sary treatment, services, and information to patients, based on the provider’s own personal views.” For example, the complaint continues, “if a woman arrives at the emergency room of one of Plaintiffs’ institutions presenting with a ruptured ectopic preg­nancy, the Final Rule would permit a wide swath of employees—from reception­ists to nurses to doctors to pharmacists to anesthesiolo­gists—to refuse to assist that patient in real time, and without advance notice, no matter the intense medical risk to the patient.”

The State of New York was joined by Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Wisconsin, as well as New York City, Chicago and the District of Columbia. California and the City of San Francisco have filed a separate suit challenging the rule.

Judge Paul Engelmayer ruled simultaneously on this and three other lawsuits brought against the HHS rule, agreeing with the plaintiffs’ claim that the rule was “arbitrary and capricious.” He advised HHS that in future rulemaking, the agency should “do so within the confines of … the Constitution.”

Several similar rules are making their way through the federal pipeline and are sure to face similar challenges.


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