The faith-based health-care community in the United States was dealt a double blow with twin rulings coming out of courts in Washington state and New York regarding conscience-protection rules established in May by the U.S. Department of Health and Human Services (HHS).
On Nov. 6, a federal court in New York vacated the Trump administration’s “Protecting Statutory Conscience Rights In Health Care” rule, which was to be implemented on Nov. 22. The rule was designed to enforce current laws protecting health-care workers’ conscience rights. Under the rule, organizations funded by the federal government were required to be compliant with a set of existing federal laws providing conscience protections for health-care professionals.
The next day, the Eastern District Court of Washington ruled that the HHS conscience-protection rule was unconstitutional and violated the Administrative Procedure Act, a 1946 law that governs how federal agencies can establish and enforce regulations. The law also gives federal courts power to oversee such regulations.
The plaintiffs in both cases, as CNA reported, include New York, Washington state and 17 other states, the District of Columbia and Planned Parenthood’s national organization and its New England affiliates.
In the Nov. 6 ruling, the judge in the case cast doubts on the seriousness of reported violations of conscience claimed by the HHS during oral arguments — both in number and severity, although a pair of recent polls conducted by the U.S. Conference of Catholic Bishops (USCCB) and the Christian Medical and Dental Associations (CMDA) show that among faith-based health-care professionals, violations are occurring and there is a need for rules to enforce the protections guaranteed by federal law.
The twin rulings also indicate a change in tactics among those opposed to faith-based health-care professionals reserving their right by conscience to deny treatment or referral to morally objectionable procedures, such as abortion, or drugs, such as contraceptives or abortifacients.
And, according to medical and legal experts, besides putting the health-care workers’ conscience rights in jeopardy, the two rulings also confirm that opponents are seeking to undermine conscience rights through administrative law by challenging not the laws protecting conscience rights, but instead the regulations and rules that govern such laws, thereby pressuring Catholic health-care professionals to choose either to maintain their profession or their moral integrity.
A recent Washington Post analysis of the Nov. 6 ruling pointed out that the ruling judge in the case, U.S. district Judge Paul Engelmayer, had challenged the Trump administration’s claim that “the HHS Office for Civil Rights received 358 complaints over two fiscal years, compared with an average of just 1.25 complaints each year under the Obama administration.”
This agrees with estimates by Roger Severino, HHS Office of Civil Rights director, who said Aug. 28 that in the eight years of the Obama administration, HHS received 10 complaints while each year the Trump administration receives “hundreds.”
But Engelmayer, according to The Washington Post report, called the figures provided by the Trump administration “demonstrably false” and said that, during oral arguments in the Nov. 6 case, “administration lawyers conceded that only about 20 of the 358 complaints were related to conscience protections. And of those 20, just seven were situations to which the federal protections would directly apply.”
Yet there is good evidence that there has been an increase in violations of conscience rights against Christian health-care workers. According to the findings of the USCCB and CMDA polls released in September, faith-based health-care professionals are voicing an urgent concern that their conscience rights are in jeopardy.
In the USCCB poll, among 1,004 American adults interviewed, 83% believe that health-care professionals “should not be forced to perform procedures against their moral belief.” The CMDA poll, which interviewed about 3,000 health-care professionals, including 400 members of the Catholic Medical Association (CMA), revealed that 76% of participants said that “the number of medical professionals being pressured to compromise their moral, ethical, or religious beliefs in their practices” has “increased,” while 60% said that “doctors, medical students or other health-care professionals face discrimination for declining to participate in activities or provide medical procedures to which they have moral or religious objections.”
Such numbers suggest that increases in conscience violations in health care are far greater than Engelmayer’s characterization, as The Washington Post reported, as being “so small as to be asymptotic to zero.”
But complaint numbers only tell part of the story regarding violations to conscience in the health-care profession.
Dr. Greg Burke is an internal medicine physician in central Pennsylvania and co-chair of the CMA’s ethics committee, which facilitated input by CMA members to the CMDA poll. According to Burke, there may have been fewer officially filed complaints to the HHS before the Trump administration, but such a low number belies the genuine concern among Catholic doctors and nurses.
“Some people feel inhibited or intimidated to speak up because of the risk of professional injury or harm based on their beliefs,” he told the Register. “Some of these things don’t always make it up to the surface. Perhaps there are a lot of folks who compromise because they have fears about taking a different stand on an issue.”
Daniel Blomberg is a lawyer with Becket, a nonprofit law firm that engages on religious-freedom issues, and a member of the Becket legal team representing two defendants in the New York case: the CMDA and Dr. Regina Frost, a pro-life OB-GYN from Michigan, which is one of the 18 states partnering in the suit with New York against the HHS’ conscience-protection rules. Blomberg told the Register that the attack on the HHS conscience-protection rules shows that the plaintiffs are no longer willing to abide by long-standing laws that protect the consciences of health-care workers.
“Our arguments for the case are simple,” he told the Register. “For decades now, Congress has passed bipartisan laws that have told states and organizations like Planned Parenthood that if you want to accept federal dollars, you can’t discriminate against people who don’t want to perform abortions.
“For 30 years now,” Blomberg added, “states and Planned Parenthood have happily accepted that money, and when the HHS created the regulations that you have to certify that you’re following these statutes you’ve agreed to for decades … that’s when they filed these lawsuits.”
Blomberg told the Register that the CCDA and Frost will appeal their case in the 2nd Circuit Court and hopes that HHS will make a decision soon on whether it will appeal, as well. The HHS did not respond to a request for comment by the Register.
Wesley Smith, a senior fellow at the Discovery Institute, is a lawyer and author of several books on medical ethics. Smith told the Register that, after examining the rulings, he sees that by resorting to administrative law, the 19 states and Planned Parenthood are following a troubling trend in current legal practice.
“This case illustrates a subterfuge that I think is becoming increasingly common throughout our legal system — whether on the left or right, progressive or conservative,” he told the Register. “And it highlights something beyond the issues related to this specific case and the conscience question.”
Because the U.S. has become “a technocracy, an administrative state,” Smith said, “policy lives and dies by the interpretations of judges on the propriety of rule-making methods and approaches to administrative enforcement — when what we are actually battling over are policies, which are, in turn, conflicts over values and differing moralities.”
Blomberg agreed that, instead of attacking organizations directly, as the Obama administration did through the HHS contraception mandate, opponents of conscience rights have resorted to administrative law.
“Legislators who listen to their constituents are, generally speaking, not the ones going after groups like the Little Sisters of the Poor,” he said. “Rather, it’s bureaucrats who are not accountable to the electorate.”
The states and Planned Parenthood are only concerned with the conscience-protection rules, Smith said, “as a means to destroy the substance of the rule and the morality it reflects, which they abhor.”
Smith also pointed out that the Nov. 6 and Nov. 7 rulings may indicate an attempt to force the Catholic Church — and other faith-based interests — from the health-care business.
“There is a concerted effort now underway,” Smith told the Register, “in law, in the bioethics community, the medical intelligentsia and the major medical associations, to support this approach. They’re in the midst of driving pro-life Catholic doctors who adhere to the faith’s moral principles,” and doctors who believe in traditional medical ethics, “out of the profession.”
Burke said the day may come when, because of the conflict between religious and secular moral standards, state medical boards will be as divided as the country’s voters are today.
“I can see the state boards of medicine, whether it’s a blue state or red state, battling it out about what it means to a have a license in California or Alabama,” he said. “Would it look different? Historically, it hasn’t. There has always been a gentleman’s agreement of sorts between states, and there’s been always an accommodation, particularly around religious exemptions that go back many decades for physicians and nurses not to participate in abortion and sterilization procedures.”
Register correspondent Joseph O’Brien writes from Soldiers Grove, Wisconsin.