Health Reform WK-EDGE HHS rule protecting conscientious objectors to abortions and LGBT procedures struck down as invalid
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Monday, December 16, 2019

HHS rule protecting conscientious objectors to abortions and LGBT procedures struck down as invalid

By Robert B. Barnett Jr., J.D.

In addition to finding violations of the Administrative Procedure Act, the court also concluded that HHS lacked both explicit and implicit authority to issue the rule.

An HHS rule allowing those with religious objections to refuse to provide abortions and other medical services, such as those provided to transgender persons, was invalidated in its entirety as "saturated with error" because it improperly upset the balance Congress sought to establish in its conscientious objector laws between protecting conscientious objections and effective delivery of healthcare, a California federal district court has ruled. The rule’s definitions "make the mischief," the court said, by improperly expanding (1) "assist in the performance," which originally meant only those directly involved in the medical procedure, to include ambulance drivers, scheduling clerks, those who set up the surgical room, and those who provide post-operative care, (2) "health care entity," which originally meant entities that provided the service, to include pharmacies, medical labs, biomedical researchers, health insurers, and third-party administrators, and (3) "referral," which originally meant medical referrals for the actual abortions, to include referrals of any type, such as telling a patient where the surgery was to be performed. In addition, the court added, nothing in the original statutes conferred on HHS any explicit or implicit rulemaking authority, thus rendering the rule completely invalid (City and County of San Francisco v. Azar, November 19, 2019, Alsup. W.).

Background. Beginning in 1973, not long after Roe v. Wade, Congress began enacting laws to protect doctors and others who objected to providing abortions: the Church Amendment (1973), the Coats-Snowe Amendment (1996), the Medicaid and Medicare Advantage law (1997), the Weldon Amendment (2004), and the Patient and Affordable Care Act (2010). Because of the absence of any delegated rulemaking authority, no agency issued any rule of any type on any conscience statutes between 1973 and 2008. In 2008, however, at the end of the George W. Bush presidency, HHS issued an interpretative rule that many critics contended improperly expanded the scope of the various conscience statutes. Three months after the rule took effect, with President Obama now in office, HHS rescinded it. In 2011, HHS issued a new rule that included parts of the 2008 rule but rescinded other parts. In particular, it rescinded the definitions, to ensure compliance with federal law.

In January 2018, with President Trump now in office, HHS proposed a new rule, which effectively resurrected the 2001 rule. HHS issued its final rule in May 2019, which triggered several lawsuits, including this one. The City and County of San Francisco alleged that the new rule violated the Administrative Procedure Act and the Constitution. The State of California and the County of Santa Clara, together with LGBTQ groups, also filed suits. HHS filed a motion for summary judgment, arguing that (1) the constitutional claims were not ripe for review because no specific enforcement actions had been undertaken and (2) the physicians lacked standing to make claims on their patients’ behalf. The City and County of San Francisco also moved for summary judgment.

Ripeness. The federal government argued that the Establishment Clause and Spending Clause claims were unripe because they were contingent on future events. The court noted, however, that claims are ripe when a regulation requires "an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance." In this case, the court added, the city and county would have to write alternative business practices and procedures in order to comply with the new rule, all while ensuring that patients continue to receive adequate care. In the alternative, if they refused to comply, they would lose all federal funding. As a result, the constitutional claims were deemed ripe for review, and the government’s motion for summary judgment on ripeness grounds was denied.

Standing. Physicians in the Santa Clara suit had raised free speech, equal protection, and due process claims on behalf of their LGBTQ and abortion-seeking patients. According to the court, whether a third party has standing for another entity depends on the relationship between the two. In this case, the court said, the physicians have a confidential relationship involving a procedure that cannot be done without their involvement. Because those rights are "thus closely intertwined," the physicians had standing to pursue their patients’ claims. The government’s summary judgment motion based on lack of standing, therefore, was denied.

APA. Turning to the city and county’s argument that the rule violated the Administrative Procedure Act, the court concluded that the new definitions provided in the rule "upset the balance drawn by Congress between protecting conscientious objectors versus facilitating the uninterrupted provision of health care to Americans." This rule was determined to be interpretative rather than legislative. Even an interpretative rule, however, cannot add or subtract from the statute itself. Ultimately, it is the statute itself, not the interpretative rule, that must prevail.

For the court, the source of the rule’s trouble was with the definitions. The first was "assist in the performance of." Whereas once the definition was limited to those who actually performed the procedures, the new definition includes a raft of others, including ambulance drivers. Thus, an ambulance driver would be perfectly within his right, when, upon learning that the patient he is taking to the hospital is doing so to end an ectopic pregnancy, he stopped the ambulance and ordered her out. This was never intended by the drafters of the original conscience statutes. The second was "health care entity." Whereas once the law was confined to those individuals and facilities that provided the service, the new HHS rule would extend it to a range of entities that would include pharmacies and medical labs. The original law was never intended to allow a pharmacy to refuse to fill a prescription. The third was "referral." Whereas some conscience statutes used the term "referral," it was never defined. The new definition, however, was so broadly drawn that it would prevent a hospital from firing a front-desk employee who refused to tell a woman seeking an emergency abortion which floor the procedure would be on. This construction the court said, went beyond the meaning of the term within the healthcare industry. As a result, the city and county’s motion for summary judgment was granted.

Rulemaking authority. The court also returned to the fact why no rules were issued prior to 2008: no rulemaking authority existed in any of the conscience laws. Examining those prior laws, the court concluded that HHS lacked both explicit and implicit authority to issue the rule. It then turned to the question of whether its order invalidating the rule would apply nationwide or only to these parties. The court concluded that it would apply nationwide. It made no sense to invalidate a rule in its entirety and then apply it only to a few parties. The court’s ruling was broadly enough constructed that it would apply equally to any party seeking to invalidate it on APA grounds. As a result, the court, the rule was "vacated in its entirety." The additional constitutional claims were not addressed in light of the finding that the rule was invalid.

The court, therefore, denied the government’s summary judgment motion, and it granted the city and county’s summary judgment motion. "The challenged rule," the court said, "is set aside and shall be unenforceable."

The case is No. C 19-02405 WHA, related to C 19-02769 WHA and C 19-02916 WHA.

Attorneys: Dennis J. Herrera for City and County of San Francisco. Benjamin Thomas Takemoto, U.S. Department of Justice, for Alex M. Azar, II., U.S. Department of Health and Human Services and Roger Severino. John Paul Phillips (Paul Hastings LLP) for Scholars of the LGBT Population.

Companies: U.S. Department of Health and Human Services

Cases: CaseDecisions AccessNews AgencyNews ContraceptionCoverageNews GeneralNews CaliforniaNews

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