By Rachel Easter and Michelle Banker, National Women’s Law Center
On Friday, NWLC was back in court challenging another Trump Administration rule meant to make it harder for people to get reproductive health care. This time we’re part of a legal team challenging a rule that would allow basically any person remotely involved in health care to refuse to do their job, even when that means that patients aren’t able to get the care they need. We’re showing up to say that patient health must come first. A provider’s personal beliefs should never dictate patient care.
What the Refusal of Care Rule Is
The rule gives sweeping new rights to virtually any individual or entity involved in patient care who thinks their personal beliefs should determine the care a patient receives. Even those not directly involved in providing patient care – such as the receptionist that schedules procedures, the individual that cleans surgical instruments, or an ambulance driver – can refuse to do their jobs. The rule also says prospective employers that want to provide comprehensive health care, like Planned Parenthood, may not be able to even ask job applicants about which services they might refuse to provide. This could force the clinic to hire and keep on staff a doctor unwilling to do the very job they were hired to do.
How We Got Here
A proposed version of this dangerous rule was originally released by the Trump Administration Department of Health and Human Services (HHS) in January 2018—by no coincidence on the same day as the annual anti-abortion march in Washington. There was a public outcry against the proposed rule. More than 200,000 of us, including individuals from across the country, major medical organizations, health officials, religious groups, and members of Congress, submitted comments in opposition. We told them the rule is illegal, dangerous, and threatens those seeking reproductive health care and LGBTQ folks in particular. But the Trump Administration didn’t seem to care. HHS disregarded us and finalized the rule in late May, this time to coincide with the National Day of Prayer. In his speech, President Trump made clear the intent behind the rule: to target abortion.
A few weeks after the rule was finalized, a team of lawyers from NWLC, Planned Parenthood, Democracy Forward, and the law firm Covington and Burling filed a lawsuit against the Trump Administration to block the rule in federal court in New York. We’re not alone. This rule has so much opposition that our lawsuit has been joined with one brought by a team of lawyers at the ACLU representing the National Family Planning and Reproductive Health Association and a challenge brought by a coalition of 19 states and several cities led by New York. Other states, cities, counties, and medical providers have also brought lawsuits in federal courts in California, Washington state, and Maryland.
Our lawsuit makes clear all the ways this rule is unlawful. In the rule HHS unlawfully expanded the scope of already harmful federal refusal statutes that the rule purports to implement, and ignored several other longstanding federal laws, including Title VII, the federal law prohibiting employment discrimination. HHS cannot force clinics like Planned Parenthood to hire and employ individuals who refuse to do the very job they were hired to do and that threaten patient care. Similarly, the refusal rule puts patients in emergency situations at risk despite EMTALA, a longstanding law requiring hospitals to protect patients in emergency situations. It also creates unreasonable barriers to health care in violation of a provision of the Affordable Care Act. Our lawsuit also argues that by favoring religious objectors at the expense of all others, including the patients that health care providers serve, the rule violates the Establishment Clause of the U.S. Constitution, which enshrines separation of church and state into law.
Under federal law, courts can also scrap agency rules that are unnecessary or irrational. The Administration and Departments like HHS have limited power and must provide a “reasoned explanation” when making big policy changes like the refusal of care rule. HHS claimed that the rule was necessary because of an alleged spike in complaints alleging violations of the refusal laws. But at the end of the day, it turned out that the agency’s justification for the rule was completely bogus: a review of the complaints revealed that 94% of the 343 complaints HHS claimed to have received had nothing to do with the federal refusal laws or the refusal of care rule. In other words, the evidence revealed that the rule was a solution in search of a problem. This is the definition of irrational rulemaking.
At oral argument last Friday, the Trump Administration made concession after concession revealing just how unlawful and insidious this rule really is. The Administration conceded that, despite HHS’ previous claims of a dramatic spike in complaints, the agency had in fact received only about ten complaints per year since the proposed rule was introduced in January 2018—and that nothing supported the agency’s claims of an increase in complaints before the rule was proposed. The Administration conceded that under the rule an ambulance driver who learns that a pregnant woman is headed to the hospital to terminate an ectopic pregnancy could force the pregnant woman to get out of the ambulance, and the hospital could not fire the driver for this conduct. And the Administration conceded that no evidence in the record existed to justify the rule’s expansive definition of what it means to “assist in the performance” of an objected-to procedure, which would allow workers in the health context to refuse to perform even activities that occur on a different day than the objected-to procedure, like providing truthful information to a pregnant person about all of their options or scheduling a person for transition-related care.
The rule was originally set to take effect on July 22, 2019, but the government delayed the rule four months in response to all of the lawsuits filed against it. The rule is set to take effect on November 22, 2019 unless a court steps in to stop it.
Based on the evidence, a court should do just that. We have every reason to believe that that the court will see this so-called “conscience” rule just for what it is: an unlawful and unconscionable attack on our health care.