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Judge Rules Trump HHS Can’t Permit Health Care Providers to Deny Care on Religious Grounds

A federal judge yesterday threw out the Trump Administration’s proposed Health and Human Services rule that would have let doctors and other health care workers deny service to patients for religious reasons. The judge said HHS broke multiple laws:

In a nationally binding decision Wednesday, U.S. District Judge Paul Engelmayer in Manhattan ruled that HHS, which finalized the rule in May, lacked statutory authority to issue the rule and that it violates the Civil Rights Act of 1964 as well as the Emergency Medical Treatment and Labor Act. HHS also did not comply with proper rule-making procedures under the Administrative Procedure Act, he wrote [Harris Meyer, “Trump’s Religious Conscience Rule for Providers Gets Blocked Nationally,” Modern Healthcare, 2019.11.06.

Not helping Trump’s case: HHS Office of Civil Rights director Roger Severino lied in court:

Complaints of such violations are relatively rare — for a decade, the office would receive an average of one complaint like this each year. Severino frequently pointed to a jump in those complaints to 343 last year as proving the need for this rule. He attributed that increase to a strong message from his office that they were “open for business” when it came to issues of religious freedom.

However, that increase in the number of complaints is “demonstrably false,” according to Engelmayer’s ruling. Nearly 80% of all the complaints given to the court were about vaccinations — unrelated to health care workers and their religious beliefs in providing care.

The judge writes that only 21 — or 6% — of the complaints that the government provided the court are even potentially related to providers’ moral or religious objections. During oral arguments, the government’s attorney conceded that the real number of complaints was “in that ballpark.”

“This conceded fact is fatal to HHS’s stated justification for the Rule,” Engelmayer writes. “Even assuming that all 20 or 21 complaints implicated the Conscience Provisions, those 20 or 21 are a far cry from the 343 that the Rule declared represented a ‘significant increase’ in complaints” [Selena Simmons-Duffin, “Judge Scraps ‘Conscience’ Rule Protecting Doctors Who Deny Care for Religious Reasons,” NRP: Shots, 2019.11.06].

Health law professor Lawrence O. Gostin wrote in the JAMA Forum in May that HHS’s rule could have applied to “a pharmacist filling a prescription for contraceptives, a receptionist scheduling an appointment for sexually transmitted disease treatment, or an ambulance driver transporting a woman for an emergency abortion.” I’ve said this about cashiers handling pork; I’ll say this about health care workers handling humans in suffering: if your religion prevents you from doing certain duties of your job, you need to seek another job.

The Trump Administration is uniquely bad at rolling out rules that can withstand judicial scrutiny. Previous Administrations have usually won 70% of court challenges; Team Trump loses at least 70% of the time. The Institute for Policy Integrity tracks litigation over Trump agency regulations, guidance documents, agency memoranda. According to IPI’s database, Trump’s reckless regulators have won four cases in court and lost 43. The Trump Administration has withdrawn another twelve contested agency actions before the courts could rule. That’s a loss rate of 93%. That’s either a sign of ignorance, incompetence, or sheer contempt for the rule of law.

6 Comments

  1. Realist 2019-11-07

    I have mixed feelings on this issue. On one hand I recognize that everyone should receive equal treatment, care, access, etc. However, and in light of the recent US Supreme Court decision, is forcing someone to perform an act contrary to their closely held beliefs compulsory speech and in violation of the 1st Amendment? My understanding of the rule would be that providers would have to have another physician ready and able to step in. I think this one will be re-crafted and re-submitted.

  2. mike from iowa 2019-11-07

    Nevermind.

  3. o 2019-11-07

    Why is the religious objection not put to the same scrutiny as transgender classification by these folks? On the one hand they argue, the self-identifying of transgender individuals is a HUGE risk of false claims to allow access to bathrooms for perversion and sports for un-fair advantage. Yet, the self-identifying of a religious objection can be made – without challenge of merit – to allow all kinds of abusive discriminatory actions, like the refusal to cover certain medical procedures (with subsequent cost savings) or refusal to provide service to others you just do not like.

    Conservatives continue to erode the most basic tenant of the social contract: that we ought to make all goods and services available to all people who legally qualify for those goods and services. If you cannot stand the idea of issuing marriage certificates to homosexuals, then quit the job you have that requires you issue those certificates – let the next person do the job that the law (the representation of the public) requires. To realists question, the choice was made by the practitioner to go into that line of service provision; it is not forced speech, it is the prohibition of discrimination.

  4. Debbo 2019-11-07

    Cory said, “That’s a loss rate of 93%. That’s either a sign of ignorance, incompetence, or sheer contempt for the rule of law.”

    My answer is D, All of the Above.

    Consider that Jue-Lee-ahh-kne can’t find a decent lawyer to take his case. No one who’s very bright wants to get close to that deministration, so there’s a bunch of dunces who probably just squeaked by the bar exam. They can’t do research or write a coherent sentence, but they’re trying to craft laws. The only Kraft they know is gooey cheese product. 🤮

  5. Cory Allen Heidelberger Post author | 2019-11-08

    Realist, I can unmix your feelings for you. If you run a religious organization to promote specific religious values, knock yourself out. But you get not one penny of public money to promote your parochial views. Taxpayers do not fund discrimination.

  6. Cory Allen Heidelberger Post author | 2019-11-08

    O, I always enjoy a reference to the social contract and the many helpful ways we can think of it.

    The social contract is our agreement to just get along. We agree to put up with people who agree to put up with us, even when we can find reasons to consider each other annoying or even sinful. Your religion sounds like fairy tales, my atheism pains your soul, but we still need each other to run the grocery store, teach the kids, and pay taxes to plow the streets. And we’re both decent parents, feeding and clothing our kids, so let’s stay off each other’s backs and make sure people like us and not like us get treated equally in all of our public affairs.

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