A November 6, 2019 decision by the United States District Court for the Southern District of New York vacated new rules promulgated by the Department of Health and Human Services (HHS) intended to protect medical providers who make conscience objections to the provision of certain medical services. The HHS rule, entitled “Protecting Statutory Conscience Rights in Health Care: Delegations of Authority,” is commonly referred to as the “Conscience Rule”. The Rule was scheduled to go into effect on Friday, November 22, 2019 and would have broadly expanded the current federal enforcement authority.
Background
The 2019 Conscience Rule, as promulgated, clarifies and provides an enforcement mechanism for more than 30 existing statutes that aim to protect conscientious objectors in health care. Specifically, the Conscience Rule defines several statutory terms, previously left undefined in existing statutes, relevant to providers in the health care industry who morally or religiously object to services such as abortion, sterilization, sex re-assignment procedures, end of life care, and assisted suicide. The Rule also requires that any applicant for federal funds provide certain assurances and formally certify that it will comply with the Conscience Rule. The Rule outlines additional enforcement tools for the Office for Civil Rights (“OCR”), which, under the Patient Protection and Affordable Care Act (“ACA”) of 2010, has the authority to receive and consider complaints of discrimination against certain health care entities unwilling to assist or cause the death of any individual. The Conscience Rule also requires each recipient of federal funds to maintain records of any OCR activity, and to post a voluntary notice of conscience protections.
The Court Ruling
The November 6 decision by the United States District Court for the Southern District of New York vacated the Conscience Rule in its entirety, concluding that Congress did not delegate sufficient authority to HHS to promulgate pertinent components of the Conscience Rule, or delegate sufficient enforcement powers necessary under the Rule. The federal court in New York also ruled that the Rule is unconstitutionally inconsistent with both the separation of powers and the Spending Clause.
Two additional cases, one pending in the U.S. District Court for the District of Maryland and the other in U.S. District Court for the Northern District of California, entered orders consistent with the decision from New York. Most recently, the U.S. District Court for the District of Maryland entered an Order on November 12 referencing the New York ruling, invalidating the Conscience Rule, and holding the matter in abeyance pending any appellate proceedings.
HHS Action
The Department of Health and Human Services recently announced that given the recent federal court order, the Conscience Rule will remain vacated and not in effect unless the Office for Civil Rights receives additional instruction from the courts. In its statement, however, HHS made clear that OCR will continue to receive and investigate complaints of discrimination based upon a medical provider’s conscientious objections under regulations enacted in 2011.
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