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Three federal courts recently struck down the U.S. Department of
Health and Human Services’ (“HHS”)
“Conscience Protection Rule” (the “Rule”),
which was expected to go into effect on November 22, 2019.
Purporting to enforce pre-existing “conscience laws”
that had been enacted by bipartisan majorities in Congress, the
Rule protected the rights of certain employees of healthcare
institutions that receive federal funds to refuse to participate in
certain healthcare procedures based on religious or moral
objections, such as abortion, sterilization and assisted suicide.
Covered hospitals, health plans and local governments that
compelled their workers to perform such tasks despite objections
would have been subject to penalties, including a potential loss of
all federal funding.
In response to the Rule’s proposal in May 2019, numerous
states, the District of Columbia, local governments, healthcare
organizations and non-profit healthcare advocacy groups lodged
several challenges in federal courts across the country.
On November 6, 2019, the U.S. District Court for the Southern
District of New York struck down the Rule in a detailed 147-page
decision. Finding that the Rule violates the Administrative
Procedure Act and the U.S. Constitution, the Court stated that HHS
did not have the authority to impose major portions of the rule and
that HHS’ stated justification for the Rule — an
alleged significant increase in civilian complaints relating to the
conscience provisions — was factually untrue. The Court also
held that the Rule conflicted with Title VII’s provisions
allowing an employer to not accommodate an employee’s
religious beliefs when: (a) doing so would be an “undue
hardship” on the employer; or (b) the employer has offered
the employee an alternative “reasonable accommodation.”
Although the Court left the door open for HHS to issue a new rule,
it specifically noted that HHS must do so within the confines of
the APA and the Constitution.
The U.S. District Court for the Eastern District Court of
Washington then struck down the Rule on November 7. On November 19,
the U.S. District Court for the Northern District of California
followed suit and held that the Rule’s issues were so
significant that it had no choice but to vacate the Rule in its
entirety.
HHS has not yet appealed the decisions and other federal court
actions remain pending. Employers should be aware that striking the
Rule does not change an employee’s existing rights under
Title VII of the Civil Rights Act and applicable state
anti-discrimination laws.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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