Court Sets Aside New Health Care Conscience Rules

In City and County of San Francisco v. Azar, (ND CA, Nov. 19, 2019), a California federal district court set aside rules adopted earlier this year by the Department of Health and Human Services to give additional protection to conscience rights of health care providers. The court said in part:

With the minor exceptions noted below, the new rule is purely an interpretive rule, not a legislative rule. An agency, of course, must interpret a statute under its care. But an interpretation, even if cast in the form of a regulation, is nothing more than that — an interpretation. The statute itself is what has the force of law, not the interpretation. No interpretation can add or subtract from the actual scope of the statute itself. If the agency misconstrues a statute, then the statute controls, not the interpretation.....

... Congress tried to strike a balance between two competing considerations. One consideration was recognition that, due to religious or ethical beliefs, some doctors, nurses, and hospitals, among others, wanted no part in the performing of abortions and sterilizations, among other medical procedures, and Congress wanted to protect them from discrimination for their refusal to perform them. The countervailing consideration was recognition of the need to preserve the effective delivery of health care to Americans, including to those seeking, for example, abortions and sterilizations. Every doctor or nurse, for example, who bowed out of a procedure for religious or ethical reasons became one more doctor or nurse whose shifts had to be covered by someone else, a burden on the healthcare system. Congress struck a balance between these two opposing considerations.

In reading the rule in question, the Court sees a persistent and pronounced redefinition of statutory terms that significantly expands the scope of protected conscientious objections. As laudable as that sounds, however, it would come at a cost — a burden on the effective delivery of health care to Americans in derogation of the actual balance struck by Congress.

California's Attorney General issued a press release commenting on the decision.  KPIX5 reports on the decision.

HHS To Allow Grantees To Refuse To Serve LGBT Clients

On Nov. 1, the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants, including foster care and adoption agencies, to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. The non-enforcement decision was based on "significant concerns about compliance with the Regulatory Flexibility Act" in the promulgation of the 2016 rules.  HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. The proposed new rules would replace this section:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

(d) In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.

The new rules will instead provide:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

(d) HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its announcement, HHS said in part:

The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.

New York Times reports on the HHS action.

Proposed HHS Rule Would Eliminate Transgender Protections

Last week the Department oj Health and Human Services issued a proposed rule (full text) that would eliminate protections against discrimination in health care where the discrimination is on the basis of gender identity or termination of pregnancy.  Health Leaders reports on the proposed rule.

HHS Issues Final Rule Changes For Title X Family Planning Programs

In a 312-page release (full text) issued on Friday, the Department of Health and Human Services issued final rules revising regulation of its Title X family planning program. The new rules are scheduled to take effect 60 days after their publication in the Federal Register.  According to the release:

This rule ... will ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.....  The rule also clarifies that provision of family planning services under Title X may be available under the good reason exception at the discretion of the project director for women denied coverage for contraceptives if the sponsor of their health plan exercises a religious or moral exemption recognized by the Department.

The new rules, according to Politico:

could effectively cut off tens of millions of federal family planning dollars to Planned Parenthood and steer some of that funding towards anti-abortion, faith-based care providers....

It would ... bar Planned Parenthood and other health care providers that accept the funding from making any abortion referrals or performing abortions — regardless of the funding source — at the same facilities where they provide Title X services like birth control, mammograms and cancer screenings.

One of the rule changes eliminates the requirement that Title X programs provide abortion referral if requested.  The release says that this requirement conflicted with statutes protecting conscience in health care. [Thanks to Scott Mange for the lead.]