Federal Judge Denies Rights of Conscience to Health Care Providers

November 8, 2019 Updated: November 15, 2019

An Obama-appointed federal judge in Manhattan struck down as unconstitutional a Trump administration rule preventing federally funded health care providers from being forced to participate in abortions and other activities that violate their conscience.

U.S. District Judge Paul A. Engelmayer of the Southern District of New York, who joined the court in 2011 after being nominated by then-President Barack Obama, issued a 147-page opinion and order Nov. 6 invalidating the regulation published by the U.S. Department of Health and Human Services (HHS).

The rule, which the judge wrote “purports 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,” was to become effective July 22. During the course of the litigation, HHS agreed to delay the effective date to Nov. 22.

The ruling came in three lawsuits brought by Planned Parenthood, New York State, and other state and local governments that were consolidated by the court.

Sen. Ben Sasse (R-Neb.) described the court ruling as “absurd mush.”

“The point of the First Amendment–especially the free exercise of religion–is to protect the conscience rights of Americans,” he said in a statement. “In this country, government doesn’t get to tell you that your faith is fine on Sunday at church but not Monday at work.”

Lawyer Alexa Kolbi-Molinas of the American Civil Liberties Union praised the judicial order, characterizing it as protecting patients. “Everyone is entitled to their religious beliefs, but religious beliefs do not include a license to discriminate, to deny essential care, or to cause harm to others,” she said in a statement.

The rule, unveiled in May by the Office for Civil Rights (OCR) at HHS, was created to protect “individuals and health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs,” and implements “full and robust enforcement of approximately 25 provisions passed by Congress protecting longstanding conscience rights in health care.”

“Finally, laws prohibiting government-funded discrimination against conscience and religious freedom will be enforced like every other civil rights law,” OCR Director Roger Severino said at the time.

“This rule ensures that health care 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.”

But in his ruling, Engelmayer didn’t need to reach religious freedom issues covered by the First Amendment or the abortion issue because he found other grounds to invalidate the HHS rule.

The rule, the court found, “imposes ambiguous and retroactive conditions on the States,” which would be required to enforce its provisions because they accept health care funding from the federal government.

“Once a State has accepted funds pursuant to a federal spending program, the Federal Government cannot alter the conditions attached to those funds so significantly as to ‘accomplish[ ] a shift in kind, not merely degree,’” the judge wrote, quoting from the Supreme Court’s 2012 ruling in NFIB v. Sebelius.

The judge indicated he was striking down the entire rule instead of just parts of it, because it “was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”

In his opinion, Engelmayer also noted that protecting health care providers’ freedom of conscience would be expensive for the states.

“HHS itself classifies the Rule as ‘economically significant,’ meaning it will have an annual economic effect of more than $100 million … [and] will cost around $1 billion to implement … over its first five years, not including public health costs.”

“The Rule also puts in jeopardy billions of dollars in federal health care funds,” the judge wrote matter-of-factly, without noting that providing financial incentives for compliance was the purpose of the rule.

Planned Parenthood could be adversely affected, he wrote parenthetically, because “nearly” every one of its affiliates “participates in Medicaid, which garners hundreds of millions of dollars in reimbursement.”

The HHS regulation came two years after President Donald Trump signed Executive Order 13798 to protect Americans’ fundamental rights of conscience and religious liberty.

EO 13798 states it “shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom” because our “Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.”

Trump later signed Executive Order 13831 which created a Faith and Opportunity Initiative in the White House.

The order will “ensure that the faith-based and community organizations that form the bedrock of our society have strong advocates in the White House and throughout the Federal Government,” a White House press release stated at the time.

The Epoch Times asked the Department of Justice if the administration planned to appeal the ruling but didn’t immediately receive a reply.

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