States sue over HHS' stronger conscience protections for doctors, nurses

Washington D.C., May 22, 2019 / 08:55 am

An array of states and cities filed a lawsuit Tuesday against a new Department of Health and Human Services rule allowing medical professionals to refuse to take part in procedures because of religious or conscientious objections.

The suit filed May 21 in the US District Court for the Southern District of New York claims the conscience provision illegally favors healthcare workers over patients.

The 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. It is due to take effect two months from its publication in the Federal Register.

Under the rule, 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.

Roger Severino, director of the HHS' new Conscience and Religious Freedom Division, has said the 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," he stated. "Finally, laws prohibiting government funded discrimination against conscience and religious freedom will be enforced like every other civil rights law."

Abortion activists have said that the new rule will severely curtail access to such procedures in rural and other communities.

New York is leading the 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.

The 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 against the rule, saying it "impedes access to basic care" and "encourages discrimination against vulnerable patients."

San Francisco also filed a suit against the rule earlier this month.

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."