Planned Parenthood, ACLU Sue Over ‘Refusal of Care’ Rule

MANHATTAN (CN) – Planned Parenthood and the American Civil Liberties Union filed separate federal lawsuits Tuesday to block a rule that would let medical providers refuse or even withhold information about treatment based on so-called “conscience-based” objections.

“The ACLU will not stand by as our government institutes policy that could endanger people’s lives,” the group’s senior staff attorney Alexa Kolbi-Molinas said in a statement. “Freedom of religion is a fundamental right, but it cannot be used to harm others — especially when that includes withholding emergency care or critical information about patients’ health.”

Published in the Federal Register on Jan. 26, 2018, the rule titled Protecting Statutory Conscience Rights in Health Care envisions sweeping discretion for medical personnel to withhold treatment based on their personal, religious or moral beliefs.

“The rule would allow almost any health care provider — including hospitals or individual workers in the health care setting, even those only tangentially involved in the delivery of patient care — to refuse to provide, assist with, or refer for virtually any health service, based solely on a personal objection,” said Sarah MacDougall, an attorney for Planned Parenthood with the law firm Covington and Burling.

Planned Parenthood notes that, in allowing those providers to withhold information, the rule encourages trampling over the principle of informed consent at the heart of the Hippocratic oath.

“In many circumstances, the failure to provide this information amounts to a denial of care because, without that information, patients do not know that option exists, and thus cannot seek care at a different medical facility,” the 53-page complaint states.

Suing the U.S. Department of Health and Human Services; its secretary, Alex Azar; and the agency’s civil rights director Roger Severino, the reproductive rights group cited HHS estimates to show the expansive and costly undertaking that will arise from implementation of the rule.

“By the departments’ own estimates, the Refusal of Care Rule would impact over 613,000 hospitals, health clinics, doctors’ offices, and nonprofits, which includes facilities operated by [Planned Parenthood Federation of America]’s affiliates (such as plaintiff [Planned Parenthood of Northern New England]), and cost over $1 billion to implement,” the complaint states. “But the rule’s true costs are substantially greater than the department estimates, as the department entirely abdicates its responsibility to weigh the substantial costs to patients and their families that will inevitably result from the above-described denials of health care that the rule would cause, and fails to realistically account for the costs to health care providers who must comply with the rule’s vague and onerous requirements.”

The ACLU represents the National Family Planning and Reproductive Health Association and Public Health Solutions in the other lawsuit against the agency, which provides examples of the human toll of such refusals of treatment.

“For example, to justify the Rule, HHS cited the case of Tamesha Means, who sought legal redress when she was turned away from a hospital three times in the midst of a miscarriage of a non-viable fetus, developing a life-threatening infection as a result, because the hospital’s religious policies prohibited providing her the emergency abortion care she needed,” the ACLU’s lawsuit states.

In March 2018, the ACLU noted that the rule also threatens the rights of transgender people.

“Evan Minton’s scheduled hysterectomy should not have been canceled on the eve of that procedure, despite his doctor’s willingness to proceed with that routine operation, because the hospital became aware he was transgender,” the group said in written objections to the agency.

“These refusals, not the patients seeking justice, are the problem,” the ACLU added.

Both lawsuits are filed in Manhattan and ask that the rule be blocked as “arbitrary and capricious,” in violation of the Administrative Procedure Act, before it takes effect on July 22, 2019.

The Trump administration has lost the overwhelming majority of federal lawsuits accusing it of violating the Administrative Procedure Act, which requires that government agencies follow established rules for issuing policies on a rational basis.

In March, the Washington Post reported that APA cases comprise two-thirds of lawsuits against the administration, which has a win rate of about 6%.

Severino declared that the Office of Civil Rights would “defend the rule vigorously.”

“The rule gives life and enforcement tools to conscience protection laws that have been on the books for decades,” Severino said in a statement. “HHS finalized the conscience rule after more than a year of careful consideration and after analyzing over 242,000 public comments.”

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