HHS Final Rule Would Expand Ability of Businesses and Individuals to Refuse to Provide Necessary Health Care on the Basis of Their Own “Religious, Moral, Ethical, or Other” Beliefs
NEW YORK — Attorney General Letitia James, leading a coalition of 23 states, cities, and municipalities,filed a lawsuit today against a Final Rule issued by the Trump Administration’s Department of Health and Human Services, which seeks to expand the ability of businesses and individuals to refuse to provide necessary health care on the basis of businesses’ or employees’ “religious beliefs or moral convictions.” The federal lawsuit, filed in the Southern District of New York, seeks to enjoin the Final Rule and prevent it from going into effect. The suit follows upon a comment letter filed by the New York Attorney General and a coalition of states in March 2018, when the rule was first proposed, urging that the rule be withdrawn.
“Once again, the Trump Administration is putting politics over the health and safety of Americans,” said Attorney General Letitia James. “The federal government is giving health care providers free license to openly discriminate and refuse care to patients – a gross misinterpretation of religious freedom that will have devastating consequences on communities throughout the country. When the health of our residents is at stake, and the safety of vulnerable populations hang in the balance, we cannot rest until this ‘health care refusal’ rule is stopped.”
The lawsuit alleges that the Final Rule, which will take effect in July 2019, would undermine the delivery of health care by giving a wide range of health care institutions and individuals a right to refuse care, based on the provider’s own personal views. The Rule drastically expands the number of providers eligible to make such refusals, ranging from ambulance drivers to emergency room doctors to receptionists to customer service representatives at insurance companies. The Rule makes this right absolute and categorical, and no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse.
Under the Rule, a hospital could not inquire, prior to hiring a nurse, if (s)he objected to administering a measles vaccination—even if this was a core duty of the job in the middle of an outbreak of the disease. Or an emergency room doctor could refuse to assist a woman who arrived with a ruptured ectopic pregnancy, even if the woman’s life was in jeopardy.
The Rule would also allow businesses, including employers, to object to providing insurance coverage for procedures they consider objectionable, and allow individual health care personnel to object to informing patients about their medical options or referring them to providers of those options. The devastating consequences of the Rule would fall particularly hard on marginalized patients, including LGBTQ patients, who already confront discrimination in obtaining health care.
The lawsuit further alleges that the risk of noncompliance is the termination of billions of dollars in federal health care funding. If HHS determines, in its sole discretion, that states or cities have failed to comply with the Final Rule – through their own actions or the actions of thousands of sub-contractors relied upon to deliver health services – the federal government could terminate funding to those states and cities, to the price tag of hundreds of billions of dollars. States and cities rely upon those funds for countless programs to promote the public health of their residents, including Medicaid, the Children’s Health Insurance Program, HIV/AIDS and STD prevention and education, and substance abuse and mental health treatment.
The lawsuit argues that this drastic expansion of refusal rights, and the draconian threat of termination of federal funds, violates the federal Administrative Procedures Act and the Spending Clause and separation of powers principles in the U.S. Constitution.
In addition to New York, the lawsuit was filed by the City of New York, Colorado, Connecticut, Delaware, the District of Columbia, Hawai‘i, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, the City of Chicago, and Cook County, Illinois.
New York’s action has been led by Matthew Colangelo, Chief Counsel for Federal Initiatives, Assistant Attorneys General Lilia Toson, Brooke Tucker, Amanda Meyer, and Justin Deabler in the Civil Rights and Health Care Bureaus, and Lisa Landau, Health Care Bureau Chief. The Health Care and Civil Rights Bureaus are part of the New York Attorney General’s Social Justice Division, led by Chief Deputy Attorney General Meghan Faux.