The new HHS rule, announced May 2 and published May 21 in the Federal Register, strengthens a series of laws intended to protect the conscience rights of doctors and nurses.
“Even though Federal conscience and anti-discrimination laws are currently in effect, the public has sometimes been confused about their applicability in relation to other Federal, State, or local laws,” the new rule reads.
“Some advocacy organizations have filed lawsuits claiming that Federal or State laws require private religious entities to perform abortions and sterilizations despite the existence of longstanding conscience and anti-discrimination protections on this topic.”
Under existing law, medical providers may opt out of direct participation, as well as having to refer patients to other providers who will perform procedures to which they object, such as abortion and sterilization. The rule is due to take effect July 22.
New York is leading a suit against the new rule; its co-plaintiffs are Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin, as well as the District of Columbia, Chicago, New York City, and Cook County, Ill.
Those plaintiffs say the rule would force some healthcare facilities to hire more staff in case there are too many conscientious objectors to provide requested procedures.
California filed a separate lawsuit May 21 against the rule, saying it “impedes access to basic care” and “encourages discrimination against vulnerable patients.” Planned Parenthood has also filed a lawsuit.
Last week, California asked for a preliminary injunction to block the rule, saying that if the state refused to comply, they could lose federal funding for healthcare. San Francisco joined the call for an injunction after announcing their own lawsuit May 2.
Santa Clara County announced their lawsuit May 28 leading a coalition of other entities including the pro-abortion Center for Reproductive Rights. The coalition petitioned federal judge Nathanael Cousins in U.S. District Court for the Northern District of California June 11 to prevent the HHS from enforcing the new rule.
James Williams, county counsel for Santa Clara, told NPR that the county already has a policy for conscientious objectors that requires they notify the county of their objection in advance, and that includes an exception for emergency situations.
The HHS responded to concerned comments that the new rule would prevent some patients from being treated in an emergency, replying in the Federal Register that federal law mandating that “certain hospitals treat and stabilize patients who present in an emergency does not conflict with Federal conscience and anti-discrimination laws.”
In addition, the HHS contended that religiously affiliated hospitals, including Catholic hospitals, “play a major role in the delivery of health care to residents of the United States, including to underserved or underprivileged communities in particular, and are motivated by their beliefs to serve such communities.”
“This rule ensures that healthcare entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law,” Office of Civil Rights Director Roger Severino said May 2.
The text of the rule acknowledges that several submissions were made during consultation regarding the possible limitation on access to abortion and sterilization in some communities, saying these submissions proved the inadequacy of previous conscience protections.
“The Department observed that it was contradictory to argue, as many commenters did, both that the rule would decrease access to care and that the then‐current conscience protections for providers were sufficient,” the rule reads.
“If the Department’s new rule would decrease access to care because of an increase in providers’ exercise of conscientious objections, it would seem that the statutory protections that existed before the regulation did not result in providers fully exercising their consciences as protected by law.”
The next step, NPR reports, will be for a judge in U.S. District Court to decide whether any of the California plaintiffs pass the test for preliminary injunctive relief, i.e. that they will suffer "irreparable harm" should the rule go into effect.
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