HHS Rescinds Prior Administration's Interpretation of Emergency Room Abortion Practices Under EMTALA

 In January 2025, the U.S. 5th Circuit Court of Appeals upheld an injunction issued by a Texas federal district court barring enforcement of a 2022 Guidance Document and related Letter on emergency abortion care issued by the Department of Health and Human Services. HHS had taken the position that under the Emergency Medical Treatment & Labor Act, emergency rooms must sometimes perform abortions as a method of stabilizing pregnant women who have pregnancy complications. HHS also took the position that this federal requirement pre-empts Texas laws barring abortions. The 5th Circuit concluded that EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child and that doctors must comply with state law in balancing those obligations. (See prior posting.) On May 29, 2025, HHS placed a statement on the 2022 Guidance Document that it was being rescinded. However, it went on to apparently limit the rescission to plaintiffs in the 5th Circuit case, saying:

HHS may not enforce the Guidance and Letter’s interpretation of EMTALA—both as to when an abortion is required and EMTALA’s effect on state laws governing abortion—within the State of Texas or against the members of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA).

Then today (June 3, 2025), HHS issued a Statement (full text) saying that it is rescinding the prior policy for all hospitals, not just for parties to the prior litigation.  The Statement said in part that the 2022 Guidance Document and Letter (which has also been stamped "Rescinded"):

do not reflect the policy of this Administration. CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy. CMS will work to rectify any perceived legal confusion and instability created by the former administration’s actions.

Meanwhile, ADF today issued a press release saying that in light of the rescission of this policy it has filed a voluntary dismissal of another lawsuit it had filed challenging the Guidance Document.

Suit Challenges HHS's Rescission of Sensitive Locations Policy

Suit was filed yesterday in an Oregon federal district court by a group of churches, an interfaith council and a Latino organization challenging the Department of Homeland Security's reversal of its "sensitive locations" policy that had limited immigration enforcement activities in churches, health care clinics and social service agencies. The complaint (full text) in Pineros y Campesinos Unidos del Noroeste, (D OR, filed 4/28/2025), alleges in part:

112. Defendants’ rescission of sensitive locations protections enables immigration enforcement to target sensitive locations and events commonly associated with expression, directly and substantially interfering with the ability of Plaintiffs and their members to associate freely.

113. Following the rescission of protections for sensitive locations, Defendants have shown that immigration enforcement actions will be carried out to punish individuals at sensitive locations from engaging in expressive activity with which Defendants disagree. The rescission of sensitive locations protections has already led to fear and discouragement of participation in planned protests, events, and activities, as well as religious ceremonies....

121. Defendants’ rescission of protections for sensitive locations permits ICE and CBP agents to conduct immigration enforcement activity, including arrests, investigations, and surveillance, at and near houses of worship, locations where houses of worship provide community services, and during religious ceremonies.

122. Such conduct has deterred and will continue to deter membership, attendance, and participation in religious services and related events for all individuals, including lawful permanent residents and U.S. citizens. ICE enforcement will also be likely to disrupt activities and events held by places of worship, including religious ceremonies. The conduct has impacted the free exercise rights of members of the Augustana Lutheran Church; Our Lady of Guadalupe Parish, San Francisco Interfaith Council, and Westminster Presbyterian Church. Plaintiffs’ core work of carrying out religious ceremonies and providing pastoral care to parishioners to further their faith has been disrupted by the need to now prioritize maintaining the safety of their sanctuaries....

Oregon Live reports on the decision.

HHS Issues Guidance On Defining Gender-Based Terms

On Wednesday, the Department of Health and Human Services issued a release titled "Defining Sex: Guidance for Federal Agencies, External Partners, and the Public Implementing Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." (full text). The 1½ page memo says in part:

There are only two sexes, female and male, because there are only two types of gametes. An individual human is either female or male based on whether the person is of the sex characterized by a reproductive system with the biological function of producing eggs (ova) or sperm....

Recognizing the immutable and biological nature of sex is essential to ensure the protection of women’s health, safety, private spaces, sports, and opportunities. Restoring biological truth to the Federal government is critical to scientific inquiry, public safety, morale, and trust in government itself.

The Release goes on to define the terms "sex", "female", "male". "woman", "girl", "man", "boy", "mother", and "father",

Justice Department Announces Multi-Agency Task Force to Combat Antisemitism

In a press release yesterday, the Department of Justice announced the formation of a multi-agency Task Force to Combat Anti-Semitism. According to the Release:

The Task Force’s first priority will be to root out anti-Semitic harassment in schools and on college campuses.

In addition to the Department of Justice, the Task Force will include representatives from the U.S. Department of Education, U.S. Department of Health and Human Services, and other agencies as it develops. The Task Force will be coordinated through the Department’s Civil Rights Division.

Suit Challenges Federal Agency Rule Changes Protecting Against Gender Identity Discrimination

Suit was filed last week in a Louisiana federal district court challenging rule changes interpreting five federal statutes. Defendants are HHS, Department of Agriculture, EEOC and the Department of Justice. The rule changes define sex discrimination and sexual harassment as including discrimination or harassment on the basis of gender identity and define gender dysphoria as a disability. The complaint (full text) in Rapides Parish School Board v. U.S. Department of Health and Human Services, (WD LA, filed 1/17/2025), contends that the rule provisions are not authorized by the various statutes being implemented, are arbitrary and capricious and violate the Spending Clause of the Constitution. It also alleges that various of the rule provisions compel speech in violation of the First Amendment and are unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

HIPPA Rule Barring Reporting of Legal Abortions to Out-of-State Enforcement Authorities Is Preliminarily Enjoined

In April of this year, the Department of Health and Human Services adopted new privacy rules under HIPPA designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. The rules prohibit doctors, clinics and insurance companies from disclosing information about patients' reproductive health care that is lawful where provided when the information is sought by the patient's home state for the purpose of an investigation that may lead to civil or criminal liability there. (See prior posting.) In Purl v. U.S. Department of Health and Human Services, (ND TX, Dec. 22, 2024), a Texas federal district court issued a preliminary injunction barring enforcement of the rule against the physician and the clinic that are plaintiffs in the suit. The court held that the HHS rule violates a provision of HIPPA protecting state rules requiring reporting of child abuse. The court said in part:

Congress mandated that HIPPA cannot be "construed to invalidate or limit the authority, power, or procedures established under any law providing for the reporting of disease or injury, child abuse, birth, or death, public health surveillance, or public health investigation or intervention." ...

Plaintiffs argue that the 2024 Rule "unlawfully limits disclosures about child abuse" to states like Texas..... They aver HHS limits such disclosures by curtailing doctors' ability to freely report suspected "child abuse" and instead forces them into a "labyrinth of criteria" to determine what can and cannot be disclosed....

The 2024 Rule "limits" practitioners from reporting "child abuse" in several ways. It requires "covered entities" to determine whether the relevant "reproductive healthcare" was "lawful" under the circumstances it was acquired.... 

But, of course, many "covered entities" are not prepared or equipped to make nuanced legal judgments....

Again, even if a more nuanced reading of the 2024 Rule allowed child-abuse reporting to Texas CPS, a nonlawyer licensed physician is not equipped to navigate these intersecting legal labyrinths. And it is precisely such restraints and impediments that Congress forbade when it comes to child-abuse reporting.

Suit Challenges HIPPA Rules Barring Reporting of Out-of-State Abortions

As previously reported, in April of this year the Department of Health and Human Services issued new privacy rules under HIPPA designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. Yesterday, suit was filed in a Texas federal district court challenging the rules.  The complaint (full text) in Purl v. U.S. Department of Health and Human Services, (ND TX, filed 10/21/2024), alleges that the new privacy rules cover not only abortion, but also hormone and drug interventions for gender dysphoria and surgical procedures on an individual's reproductive system. The complaint alleges in part:

5. ... [T]he 2024 Rule purports to limit the circumstances when a HIPAA-covered entity can share information with government agencies, such as state child-welfare agencies and law enforcement agencies, both state and federal.  

6. HIPAA-covered entities that share information in contravention of HHS’s regulations incur criminal liability. 

7. Yet the HIPAA statute explicitly preserves government authority to investigate and to require disclosures concerning abuse. 

8. The 2024 Rule lacks statutory authority and is arbitrary and capricious. As such, the Court should vacate and set aside the Rule and preliminarily and permanently enjoin its enforcement....

ADF issued a press release announcing the filing of the lawsuit.

Texas Sues HHS Over Rule Protecting Privacy of Information About Out-of-State Abortions

Last week, Texas Attorney General Ken Paxton filed suit against the U.S. Department of Health and Human Services challenging two HHS privacy rules that limit entities covered by HIPPA from disclosing certain health care information about patients to state law enforcement officials. The rule adopted earlier this year (see prior posting) specifically prohibits disclosure of information to enforcement officials in a woman's home state for their use in a civil, criminal or administrative proceeding investigating reproductive health care (including abortions) provided in another state where the health care was lawful in the state where it was provided. The complaint (full text) in State of Texas v. U.S. Department of Health and Human Services, (ND TX, filed 9/4/2024), alleges in part that HIPAA explicitly preserves state investigative authority and does not give HHS authority to promulgate rules limiting has HIPPA regulated entities may share information with state governments. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.  AP reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges HHS Rules Barring Gender Identity Discrimination in Federally Funded Health Care Programs

Suit was filed yesterday in a Missouri federal district court by six states and a national organization of pediatricians challenging new rules adopted in May by the Department of Health and Human Services barring discrimination on the basis of gender identity in federally funded health care programs. The complaint (full text) in State of Missouri v. Becerra, (ED MO, filed 7/10/2024), alleges in part:

1. ... [The] new final rule ... forces doctors to perform, refer for, or affirm harmful gender-transition procedures and forces States to pay for these dangerous procedures in state health plans....

2. HHS threatens to punish doctors and States who do not comply with the mandate by imposing huge financial penalties and excluding them from federally funded healthcare programs like Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). This punishment would effectively preclude doctors and States from providing healthcare for the most vulnerable children in low-income communities. 

3. This harmful rule violates the Affordable Care Act (ACA), the Administrative Procedure Act (APA), the structural principles of federalism, and the freedom of speech. 

4. Congress did not authorize any of this. The rule purports to implement the sex-discrimination prohibition in Section 1557 of the ACA, but there is no gender-transition mandate in that statute, nor in Title IX of the Education Amendments of 1972 from which it is derived. Nor did the rule (or the ACA) satisfy the constitutional requirements of clear notice for such a mandate: the States and healthcare providers did not agree to provide, pay for, or affirm gender-transition procedures when they began Medicaid, Medicare, and CHIP. 

States bringing the lawsuit are Missouri, Utah, Arkansas, Iowa, North Dakota, South Dakota and Idaho. ADF issued a press release announcing the filing of the lawsuit.

New HIPPA Rules Protect Against Disclosure to Law Enforcement of Out-of-State Abortions

On April 22, the Department of Health and Human Services issued new rules under HIPPA to protect the privacy of reproductive health care.  The rules were adopted in a 291-page Release (full text) (press release). The rules are designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. A Fact Sheet issued by the Department of Health and Human Services summarizes the new rules, saying in part:

The Final Rule strengthens privacy protections by prohibiting the use or disclosure of protected health information (PHI) by a covered health care provider, health plan, or health care clearinghouse—or their business associate—for either of the following activities:

To conduct a criminal, civil, or administrative investigation into or impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.

The identification of any person for the purpose of conducting such investigation or imposing such liability.

... [T]he prohibition applies where...:

The reproductive health care is lawful under the law of the state in which such health care is provided under the circumstances in which it is provided....

The reproductive health care is protected, required, or authorized by Federal law, including the U.S. Constitution, regardless of the state in which such health care is provided....

19th News reports on the new rules. [Thanks to Scott Mange for the lead.]

Texas' Claim Against HHS Over Pharmacy Guidance Dismissed As Moot

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, April 5, 2024), a Texas federal district court dismissed as moot a challenge to an HHS Guidance Document for pharmacies. Initially, HHS issued Guidance reminding retail pharmacies of their non-discrimination obligations. The state of Texas and a pharmacy sued contending that the Guidance required Texas pharmacies to dispense abortion-inducing drugs in violation of Texas law and in violation of religious beliefs of plaintiff pharmacy. HHS denied this and moved for dismissal of the complaint. The court disagreed. The court now describes that decision by saying in part:

So based on the suspicion that Defendants were “smurfing” the administration’s policy goal contrary to the Supreme Court’s holding in Dobbs, the Court shot down Defendants’ motion. [See prior posting.]

Three months after the court refused to dismiss the suit, HHS issued a revised Guidance which explicitly provided that the Guidance does not require pharmacies to fill prescriptions for the purpose of abortions. The court went on:

[D]espite the textual changes, which appear crafted specifically to capitulate to Plaintiffs’ claims, Plaintiffs remain unpersuaded....

Plainly put, Plaintiffs’ concern is that anyone—pregnant or not—can walk into a pharmacy with a prescription for methotrexate, which the pharmacy must fill under every circumstance because the prescription was lawfully prescribed for a non-abortion purpose like rheumatoid arthritis. It’s not an unreasonable concern....

From the Court’s perspective, it’s hard to account for the Revised Guidance’s plain text, Defendants’ reasons for issuing the Revised Guidance, and Defendants’ in-person statements, but then still conclude that Plaintiffs will be forced to dispense drugs for abortion purposes. Indeed, it seems the only way the Court could even “reasonably expect” that Plaintiffs’ alleged injury would occur at this point would be for the Court to disregard all of Defendants’ actions as deceptive litigation posturing.  

To be sure, that argument appeals to the Court’s healthy distrust for the fourth branch of government. But there is no evidence that Defendants have tried to enforce these “obligations” against Mayo or any pharmacy in Texas in the almost two years since the  Pharmacy Guidance was issued. ...

Plaintiffs have received everything they asked for; they should take the win. As a result, the issues are now moot and the Court lacks jurisdiction.

ADF issued a press release reacting to the decision.

5th Circuit: Texas Statute Giving Parents Right to Consent to Teens' Contraceptives Is Consistent with Title X

 In Deanda v. Becerra, (5th Cir., March 12, 2024), the U.S. 5th Circuit Court of Appeals held that a Texas statute giving parents the right to consent to their teenagers' receiving contraceptives is consistent with Title X of the federal Public Health Service Act under which clinics are given grants to distribute contraceptives and other family planning services. HHS had given informal guidance to grantees that they could not require parental consent or notify parents before prescribing contraceptives to minors. The court's opinion describes the lawsuit:

In 2020, Alexander Deanda filed a federal lawsuit challenging the Secretary’s administration of the Title X program. He alleged that he is the father of three minor daughters1; that he is raising his daughters according to his Christian beliefs to abstain from pre-marital sex; and that he wants to be informed if any of his children access or try to access contraceptives. He further alleged that Texas law gives him a right to consent before his children obtain contraceptives. See Tex. Fam. Code § 151.001(a)(6); § 102.003(a)(1). Finally, he alleged that the Secretary administers Title X unlawfully by funding grantees who provide contraceptives to minors without notifying parents or obtaining parental consent. Accordingly, Deanda sought declaratory and injunctive relief on behalf of himself and a putative class, claiming that the Title X program violates (and does not preempt) Texas law and that it violates his constitutional right to direct his children’s upbringing as well as his rights under the Religious Freedom Restoration Act (“RFRA”).

The court concluded that Title X and the Texas statute reinforce each other because Title X calls for grantees to encourage family participation to the extent practicable.  The court however reversed the trial court's invalidation of a formal HHS Rule promulgated in 2021 forbidding grantees from notifying parents or requiring parental consent because the Rule was adopted after this lawsuit was filed and was not specifically challenged by the lawsuit. 

Houston Chronicle reports on the decision.

Christian Employers Protected from Requirement to Provide Insurance for Gender Transition Procedures

 In Christian Employers Alliance v. U.S. EEOC, (D ND, March 4, 2024), a North Dakota federal district court enjoined the Department of Health and Human Services from enforcing the Affordable Care Act, and the EEOC from enforcing Title  to require the Christian Employers Alliance or its present or future members to provide their employees insurance coverage for gender transition procedures. The court said in part:

... [I]f CEA had to comply with these mandates, its members would have to violate their sincerely held religious beliefs which is an impermissible exercise under the First Amendment and RFRA. ...

While protecting the right of transgender patients to access crucial healthcare and protecting workers from sex discrimination is certainly a compelling interest, the Defendants here have done nothing more than identify a broadly formulated interest in an attempt to justify the general applicability of the government mandates....  Even if the Court were to accept the Defendants’ purpose for the mandates as a compelling interest, the Defendants failed to provide any evidence showing this policy was the only feasible means to achieve its compelling interest....

Just The News reports on the decision.

HHS Adopts Rules Implementing Conscience Protections in Federal Law

The Department of Health and Human Services has made available a 100-page Release (full text) titled Safeguarding the Rights of Conscience as Protected by Federal Statutes that will be published in the Federal Register on January 11. The Release adopts the final version of amendments to rules initially adopted in 2011 and amended in 2019. though the 2019 version never took effect because of litigation. (See prior posting.) The new Rules seek to implement conscience protections in various statutes that bar recipients of federal funds from requiring health care personnel and organizations to participate in conduct that violates their religious or moral beliefs.  The new Rules provide in part:

OCR considers the posting of a notice consistent with this part as a best practice towards achieving compliance with and educating the public about the Federal health care conscience protection statutes, and encourages all entities subject to the Federal health care conscience protection statutes to post the model notice provided in Appendix A to this part. OCR will consider posting a notice as a factor in any investigation or compliance review under this rule.

(See prior related posting.) 

In a Release (full text) criticizing the new Rule, Alliance Defending Freedom said in part:

In its rule, HHS suggests it will continue its misguided use of the Emergency Medical Treatment and Labor Act to require doctors to perform abortions even though that federal law has no abortion requirement, and conscience laws provide no exception allowing forced performance of abortion.

In a Release (full text) commending the Biden Administration for the Rule change, the ACLU said in part:

The Biden administration announced it would partially repeal a dangerous and unnecessary Trump-era rule, which numerous courts had declared unlawful, that would have allowed health care institutions and providers to deny patients treatment and information based on personal religious or moral beliefs.

5th Circuit: EMTALA Does Not Require Emergency Abortions

In State of Texas v. Becerra, (5th Cir., Jan. 2, 2024), the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The Department of Health and Human Services' Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act (EMTALA) requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The 5th Circuit said in part:

While EMTALA directs physicians to stabilize patients once an emergency medical condition has been diagnosed, ..., the practice of medicine is to be governed by the states. HHS' argument that "any" type of treatment should be provided is outside EMTALA's purview....

 ... EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child....

... EMTALA leaves the balancing of stabilization to doctors, who must comply with state law.... We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations....

Texas Tribune reports on the decision.

Tennessee Sues to Restore Title X Grant Without Making Abortion Referrals

Tennessee's Attorney General this week filed suit against the U.S. Department of Health and Human Services seeking to restore Tennessee's $7 million annual Title X family planning grant which had been cancelled because of the state's abortion referral policy.  The complaint (full text) in State of Tennessee v. Becerra, (ED TN, filed 10/24/2023), challenges the HHS rule that requires Title X grantees to furnish information and nondirective counseling on abortion if pregnant clients request it.  Tennessee was only willing to make referrals and provide counseling as to procedures that are legal in Tennessee,  HHS takes the position that where, as in Tennessee, abortion is outlawed, out-of-state referrals would be required. the suit contends that the HHS rule violates various provisions of the Administrative Procedure Act. It asks the court, among other things, to:

Enjoin Defendants from withholding Title X funds from Tennessee for refusing to offer counseling and referrals (including out-of-state) for abortions that are otherwise illegal under Tennessee law.

Catholic World Report reports on the lawsuit.

8 Federal Agencies Clarify When Title VI Bars Discrimination Related to Religion

The White House announced yesterday that eight federal agencies have "clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities."  The agency actions are seen as part of President Biden’s National Strategy to Counter Antisemitism.  Title VI of the 1964 Civil Rights Act covers discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. It does not explicitly bar religious discrimination.  The agency Fact Sheets publicized by the White House each focuses on the kind of discrimination against persons of a particular religion that could come within the scope of Title VI. Here are the agencies' interpretations:

Department of Agriculture Fact Sheet; Department of Health and Human Services Fact Sheet; Department of Homeland Security Fact Sheet; Department of Housing and Urban Development Fact Sheet and Memorandum; Department of Interior Fact Sheet; Department of Labor Fact Sheet; Department of Treasury Fact Sheet; Department of Transportation Fact Sheet.

Court Says HHS Used "Smurfing" To Avoid Review of Guidance To Pharmacies

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, July 12, 2023), a Texas federal district court refused to dismiss a challenge by the state of Texas and a pharmacy company to the Department of Health & Human Service's July 14, 2022, Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services.  Texas claims that the Guidance is an attempt to pre-empt Texas' abortion bans. Plaintiffs contend that the Guidance exceeds HHS's statutory authority and violates the Administrative Procedure Act. HHS alleges the plaintiffs lack standing. According to the court:

Plaintiffs’ standing in this case turns on the answer to a single question: does the Pharmacy Guidance require pharmacies to dispense drugs for abortion purposes? Defendants argue now that the Pharmacy Guidance only “addresses situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” What’s more, Defendants argue that “Texas cannot point to any language in the guidance that purports to require pharmacies to dispense drugs for abortion purposes.” Thus, in Defendants’ view, because the Pharmacy Guidance is not about abortion, it “does not conflict with, or purport to preempt, Texas laws that restrict abortion.” But that argument perfectly evidences agency smurfing—an executive branch breaking up a policy goal into silos, hoping to sever the threads that link the compartmentalized pieces to the executive’s goal....

This administration has, before and since Dobbs, openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates. This Court will not play along with such a breach of constitutional constraints.

Earlier in its opinion, the court set out at greater length its concern about "smurfing":

A recent trend among federal agencies appears to be borrowing a technique common among money launderers to avoid judicial review. The technique known as “smurfing” in the financial arena occurs when the launderer divides a large transaction—which might otherwise trigger a bank’s reporting requirements—into various smaller transactions to avoid detection....

Agency smurfing, similar to financial smurfing, occurs when the executive branch smurfs one policy goal into multiple, supposedly “unreviewable” and “unchallengeable” pieces. Consider an executive branch, who, immediately following a Supreme Court decision, seeks to achieve a policy goal contrary to the Court’s holding. The executive branch knows, however, that courts will likely view that policy goal as incompatible with the Supreme Court’s reasoning. In its efforts to avoid scrutiny, and eventual discovery of their true purpose, the executive branch breaks up the policy goal into separate, seemingly unrelated and innocent pieces—an executive order here, a press release and guidance there.

Mayo Pharmacy, a co-plaintiff, also alleged violation of its free exercise rights under RFRA. The court held that the case was brought in the wrong venue to assert that claim, and it transferred that claim to the District of North Dakota where venue lies. ADF issued a press release announcing the decision.

HHS Proposes Repeal of Exemption from Contraceptive Mandate for Entities with Nonreligious Moral Objections

 Yesterday, the Department of Health and Human Services along with several other federal agencies filed a 147-page release (full text) proposing rule changes to the Trump Administration's exemptive rules under the Affordable Care Act for employers and universities with objections to furnishing employees and students coverage for contraceptive services. The proposed rule changes would eliminate the current exemption for employers and schools that have moral, as opposed to religious objections. The new rules would retain the exemption for employers and universities with religious objections.  However, under new arrangements, their employees and students could, in addition to existing options, obtain contraceptive services through an individual contraceptive arrangement with another provider, and without any involvement on the part of the employer or university with religious objections. The Center for Medicare and Medicaid Services issued a press release explaining the proposed rules, and CNN reports on the proposals.

HHS Issues Notice of Proposed Rulemaking on Conscience Protections For Healthcare Providers

The U.S. Department of Health and Human Services released yesterday a Notice of Proposed Rulemaking (full text) titled Safeguarding the Rights of Conscience as Protected by Federal Statutes. In 2019, the Trump Administration HHS adopted final rules on protecting the conscience rights of health care providers. The rules were criticized as possibly imperiling care for persons seeking reproductive health care, weakening childhood vaccination efforts and potentially leading to discrimination against gay and transgender patients. (See prior posting.) Several courts enjoined enforcement of the 2019 rules. (See prior posting.) Yesterday's Notice of Proposed Rulemaking says in part:

The Department also proposes to retain, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections but eliminate others because they are redundant or confusing, because they undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care access, or because significant questions have been raised as to their legal authorization. Further, the Department seeks to determine what additional regulations, if any, are necessary to implement certain conscience protection laws. The Department is seeking public comment on the proposal to retain certain provisions of the 2019 Final Rule, including on any alternative approaches for ensuring compliance with the conscience protection laws....

The ACLU issued a press release calling the HHS Notice "an important first step toward repealing the most harmful aspects of this dangerous rule."