By Rebecca Mayo, J.D.
A court vacated HHS’s 2019 Final Rule relating to the right to abstain from participation in medical procedures and services on religious or moral grounds.
A final rule that cited a false statement as the purpose for promulgation, that created rights and obligations that it did not have the authority to create, and regulated away statutory rights, was vacated by a District Court. The court found that HHS exceeded its authority under the Administrative Procedures Act (APA) and the Constitution in promulgating a rule allegedly intended merely interpret and clarify existing regulations. The court noted that the Conscience Provisions recognize and protect undeniably important rights, however if HHS intends to promulgate rules governing those provisions, it must do so within the confines of the APA and the Constitution (State ofNew York v. Azar, November 6, 2019, Engelmayer, P.).
Final rule. In 2019, HHS published a Final Rule that purported to "interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection." HHS. cited a significant increase in the number of complaints received relating to the Conscience provisions and the need for proper enforcement tools to enforce all Federal conscience and anti-discrimination laws. The final rule defines statutory terms, imposes assurances and certification requirements, reaffirms OCR’s enforcement authority, imposes records and cooperation requirements, and adopts a voluntary notice provision.
Shortly after the final rule was promulgated, three lawsuits were filed challenging the rule alleging violations of the APA and the Constitution. The suits were brought by states, cities, Planned Parenthood Federation of America, and the National Family Planning and Reproductive Health Association, among others. The three lawsuits were consolidated and a motion for summary judgement was submitted.
Authority. The court held that HHS lacked rulemaking authority to promulgate significant portions of the Rule that gave substantive content to the Conscience Provisions. HHS asserted that three "housekeeping" statutes gave HHS authority to promulgate the Rule. The court found that two of the statutes cited by HHS granted authority to agencies to regulate its own internal day-today affairs but not to promulgate substantive rules. The third statute was not cited as a source of authority in the final rule and therefore, the court found HHS could not use it to justify the Rule’s substantive components.
HHS asserted that the Rule was wholly non-substantive and was merely a housekeeping rule to clarify terms and implement the laws. However, the court noted that previous courts have held that rules with implement the statute are substantive by nature. Further, the definitions provided by the rule did not only clarify what the statute has always meant, they created new rights and duties. Finally, the assurance and certification requirements imposed new obligations and duties on employers and providers.
Contrary to law. The court noted the Rule employers were required to offer an effective accommodation to employees with conscience objections rather than the reasonable accommodation required under Title VII. The court held that HHS had attempted to regulate away the rights and defenses which were granted by Congress and therefore acted contrary to law. Further, the Rule applied to emergency-care situations, which exposed providers to liability for failure to accommodate an employee’s conscience objections in those situations. This created, via regulation, a conscience exception to the Emergency Medical Treatment and Labor Act’s statutory mandate. Even if HHS had substantive rule-making authority in this area, the rule-making was bound by EMTALA.
Arbitrary and capricious. HHS justified its rule-making by relying on evidence of a significant increase in the complaints that HHS had received related to the Conscience Provisions. However, upon review the court found that virtually none of the complaints on which HHS relied addressed the Conscience Provisions at all. The factual claim of a significant increase in complaints was untrue, which the court found made the decision to promulgate the Rule arbitrary and capricious. Further, HHS had previously promulgated two other rules intended to implement the Conscience Provisions and clarify terms, in 2008 and 2011. While commenters raised questions and concerns about HHS’s inconsistency and change in policy stances between these three rules, HHS failed to provide a reasoned explanation for the positions it took in the 2019 Rule. The court found that the unexplained inconsistency made the reinstatement of rescinded provisions arbitrary and capricious.
The case is No. 19 Civ. 4676 (PAE).
Attorneys: Amanda Marie Meyer, Office of the Attorney General, for the State of New York. Cynthia C. Weaver, New York City Law Department, for the City of New York. Benjamin Thomas Takemoto, U.S. Department of Justice, for U.S Department of Health and Human Services and Alex M. Azar II.
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