Judge Questions Validity of Religious Conscience Health Care Rule

SAN FRANCISCO (CN) – A federal judge voiced serious concerns Wednesday about the Trump administration’s expanded protections for health care workers with religious objections, finding it may impose new requirements on health care providers not authorized by law.

“What counts is what Congress said,” U.S. District Judge William Alsup said in court. “We cannot add or subtract from that.”

Alsup presided over a four-hour hearing Wednesday on dueling motions for summary judgment and motions to dismiss three lawsuits challenging the Department of Health and Human Services’ (HHS) anti-discrimination rule for health care workers with religious and moral convictions.

The rule, introduced May 2 and slated to take effect Nov. 22, would deny federal funds to providers unless they certify compliance with its requirements. Opponents say the rule goes beyond the prior practice of requiring accommodations for doctors and nurses directly involved in procedures such as abortions or gender reassignment surgeries.

The new rule also requires accommodations for file clerks who schedule surgeries, employees who prepare rooms or sterilize equipment and paramedics who drive patients to hospitals. Opponents say this will burden hospitals and clinics by forcing them to hire more staff, resulting in delayed or inferior care for patients.

The HHS Office for Civil Rights said it issued the rule to ensure compliance with federal laws that protect healthcare workers from religious discrimination. Those laws include the Weldon Amendment, added to HHS appropriations since 2005, and the Church Amendments, enacted in the 1970s to let religious objectors opt out of performing abortions and sterilization procedures.

Department of Justice lawyer Vinita Andrapalliyal told Alsup that HHS did consider the rule’s impact on access to care, despite suggestions to the contrary.

“The agency noted this rule would improve access to care by inviting more entities who hold religious or moral objections instead of stigmatizing them or making them exit the field or feeling they shouldn’t enter the field,” Andrapalliyal said.

A lawyer for the city of San Francisco, which stands to lose $1 billion in funding if it fails to comply with the rule, said it could empower an ambulance driver to deny life-saving services to patients.

“The regulation would permit an ambulance driver to leave a woman bleeding internally at risk of losing her life on the side of the road during a medical emergency,” San Francisco Deputy City Attorney Jaime Huling Delaye said.

Whether an ambulance driver qualifies for protections under the rule “depends on the facts and circumstances of each case,” Justice Department lawyer Benjamin Takemoto told the judge. Alsup was not satisfied with that answer.

“I have trouble thinking there would be any scenario where we would let an ambulance driver or EMT refuse service in an emergency,” Alsup said.

The judge also expressed unease with a provision of the rule that forbids asking job applicants if they have religious or moral objections to certain procedures.

“If the job is to do abortions, and someone doesn’t want to do abortions, I think they have to ask them that question,” Alsup said. “They should be disqualified is my view.”

The judge was less receptive to arguments that complying with the rule will be disruptive and burdensome for health care providers. Alsup said that line has been repeated throughout history to resist anti-discrimination laws.

“That argument was made against blacks, against women, against gays,” Alsup said. “I’ve lived too long to have heard this argument before.”

Miriam Nemetz, an attorney with Mayer Brown in Washington, D.C. who represents Santa Clara County and other plaintiffs, replied that the Trump administration’s rule is not an anti-discrimination law, but rather an incorrect interpretation of the law.

“Congress hasn’t changed the law,” Nemetz said, adding that HHS failed to adequately assess the impact of its rule on access to health care.

Plaintiffs in the lawsuit include the state of California, city of San Francisco, Santa Clara County, 10 healthcare providers and advocacy groups, and five individual doctors.

Speaking after the hearing, Nemetz said she thought the judge was “receptive” to plaintiffs’ arguments that the rule is unconstitutional, inconsistent with the law and arbitrary and capricious in violation of the Administrative Procedure Act.

Alsup said he would try to issue a decision before Nov. 22 when the rule is set to take effect, adding he may call the parties back to court for another round of oral arguments.

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