Court Strikes Down HHS Rule on Health Providers Opting Out

Arguments focus on allowing religious objections vs. restricting access to care

Stephen Miller, CEBS By Stephen Miller, CEBS November 8, 2019
On Nov. 5, a federal judge struck down a final rule issued by the Department of Health and Human Services (HHS) that would have let health care providers opt out of participating in medical procedures based on their religious or moral objections.The ruling by U.S. District Court Judge Paul Engelmayer of the southern district of New York stops the rule from taking effect as expected on Nov. 22.HHS said the regulation, which it issued in May, would protect health care workers who object to procedures such as abortions and doctor-assisted suicide. Critics of the rule said it would curtail women's reproductive freedom and access to care for transgender patients.We've rounded up articles from SHRM Online and other trusted news sources to provide a deeper look into this topic.Rule Struck Down in Its Entirety NationwideJudge Engelmayer wrote that the rule includes "numerous, fundamental, and far-reaching" violations of the Administrative Procedure Act. Major parts of the rule were inconsistent with other federal laws (such as the Emergency Medical Treatment and Labor Act), and one of the rule's primary enforcement mechanisms was found to violate the U.S. constitution on multiple grounds. Given the rule's defects, the court vacated the rule in its entirety. This decision applies on a nationwide basis.

From here, the Trump administration could appeal the decision to the Second Circuit Court of Appeals, rescind the rule, or try to amend the rule to comply with the court's decision. Separate lawsuits over the rule are pending in federal district courts in California and Washington.

(Health Affairs)

Conflicting Rights

Abortion and LGBTQ rights proponents argued that the rule could allow discrimination against transgender patients and women seeking abortions and would make it more difficult for people in vulnerable positions to get the care they need. The Trump administration and other proponents of the rule argued that it prevented workplace discrimination against health workers for their religious or moral beliefs and enabled them to keep their jobs without facing moral conflict.


Alternative Staff Could Perform Treatments

The rule also applies to sterilization and advance directives, such as those that instruct health care providers to unhook breathing machines. Under the rule, a hospital that receives federal funds cannot say that a doctor or a nurse with religious objections to performing abortions can't practice obstetrics and gynecology because of those objections. Using alternate staff to perform the treatment would not violate the new rule and an employer could inform the public about available alternate staff.

(SHRM Online)

[SHRM members-only toolkit: Complying with and Leveraging the Affordable Care Act]

Protections Covered Nonclinical Employees

Under the disputed HHS rule, employers may not ask job applicants about their religious or moral beliefs during the hiring process. The comments to the rule indicate that it should be interpreted to apply to some nonclinical staff members. An employee who prepares the room for an abortion or schedules an abortion could fall under the definition, as could a driver who transports a patient to a clinic for an abortion.

The rule does not have an "undue burden" exception.

(Jackson Lewis P.C. via JDSupra)

Courts Also Struck Down Contraceptive Rules

In October, a panel of the 9th Circuit Court of Appeals blocked two Trump administration rules that would exempt employers with "sincerely held religious beliefs or moral convictions" from being required to provide female employees with contraceptives at no cost under the Affordable Care Act. The ruling followed a similar decision by the 3rd Circuit in July that had already resulted in a nationwide injunction against the administration's rules. These rulings are expected to once again place before the U.S. Supreme Court the issue of requiring employers to pay for birth control.

(SHRM Online)


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