Denial of Care Rule Struck Down

By Hubert Plummer posted 12-13-2019 09:30 PM


In May, 2019 the US Department of Health and Human Services (HHS) issued The Denial of Care Rule, a rule that would allow any health care worker to deny medical treatment to patients because of personal religious or moral beliefs.[i]  “Health care worker” includes doctors, nurses, EMTs, administrators, janitors and clerical staff.  Since the landmark ruling of Roe v Wade in 1973, anti-abortion groups have been searching for ways to limit women’s access to abortion services.  At that time so called “conscience protections” were brought forth to allow doctors and others to refuse to perform abortions if it conflicted with their personal beliefs.  Over the years those protections were refined and essentially allowed a doctor or others to refuse to provide such a service as long as they referred the patient to other places where they could get treatment.  It would protect the doctors concerns, but not deny the patient treatment.[ii]

The HHS has a civil rights department which has been focused on enforcing federal civil rights and health care privacy laws.  The new Trump administration rule created a Conscience and Religious Freedom Division inside the HHS’s Civil Rights Department.  This new division would be equal to the existing two divisions that enforce civil rights and HIPAA.  It appears to create a direct conflict of interest.

The new regulations would potentially expand health care providers’ ability to refuse treatment to much of society’s most vulnerable people.  This rule would not just impact abortion rights, but all treatment to some patients, at the whim of the provider.[iii]  There are providers that have strong objections to homosexual and transgender patients and this rule would allow those to refuse all treatment to such patients.  There are also religions that have objections to men providing treatment to women and vice versa.[iv]

Several challenges to the new rule were brought in courts almost immediately.  The first one that came to a decision is ­New York v. HSS brought in the Southern District of New York.[v]  There were three sets of plaintiffs in the case, the first a group of 19 states led by New York[vi], the second Planned Parenthood Federation of America and Planned Parenthood of Northern New England, and the third of the National Family Planning and Reproductive Health Association and Public Health Solutions, Inc. 

The challenge was brought on claims that it violated the Administrative Procedure Act (APA)[vii] and five constitutional claims, under the Establishment Clause, the Spending Clause, the Separation of Powers, the Fifth Amendment for being unduly vague and the Fifth Amendment for violating due process. 

Plaintiffs brought a Summary Judgment Motion requesting the Court find that there are no issues of fact in question and the Court can decide the case without the need for trial.  On November 6, 2019 Judge Engelmayer issued a 147 page Opinion and Order holding that the rule violated several provisions of the APA and the Separation of Powers and Spending Clauses.  The Court held that the entire rule must be vacated.

So, if the current administration wants to reissue rules it must start from scratch and make sure it abides by the APA.






[vi] New York, New York City, Colorado, Connecticut, Delaware, District of Columbia, Hawai’i, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, City of Chicago and Cook County, Illinois.

[vii] The APA governs the process by which federal agencies develop and issue regulations

The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.