A federal court in New York last week threw out a new Trump administration rule protecting health care professionals who decline to participate in medical procedures that violate their religious conscience, in particular, abortion. U.S. District Judge Paul Engelmayer, in a 147-page opinion, said the U.S. Department of Health and Human Services did not have the authority to issue the new rule, that was set to take effect on Nov. 22.
Mike Chupp, a general surgeon who heads the Christian Medical and Dental Associations, said that unless the ruling is overturned, the result could be devastating. “Without these protections, not just Christians but those medical professionals of any faith will be forced to go underground if they want to continue practicing, to either acquiesce or leave the profession,” he said. That’s consistent with a CMDA-authorized survey from this summer: 91 percent of medical professionals who responded indicated that without conscience protections they would likely leave medicine.
The ethical squeeze faced by Christian medical professionals is real. Chupp said a New York practitioner serving disabled patients told him she was fired for counseling patients about abstinence as a method to avoid unwanted pregnancies. Before that, she was chastised for recommending that disabled patients avoid having multiple sexual partners to avoid sexually transmitted diseases.
HHS issued the new conscience rule in May, expanding the number of healthcare professionals covered and buttressing it with sanctions. One provision said healthcare institutions that violated the regulation could lose federal funding. New York and 18 other states, along with Planned Parenthood and other abortion advocacy groups, immediately sued to block the rule.
CMDA and Regina Frost, a New York OB-GYN, intervened in the lawsuit. Their lawyer, Becket counsel Nick Reaves, said the existing statutes and patchwork of regulations weren’t enough to protect Frost and other medical professionals. “Without the regulations to enforce these statutes, the laws are in many ways a dead letter,” he said.
The primary rationale for the new HHS regulations was that enforcement tools were inadequate and more people were filing religious discrimination complaints.
Judge Engelmayer didn’t buy it: “HHS’s central factual claim of a ‘significant increase’ of complaints of Conscience Provision violations is flatly untrue.” He found that only seven of the 336 complaints cited by HHS related to the conscience provisions at issue.
But Chupp said there was a reason for a lack of complaints. “The risks are too high and the possibility of protection by the federal government too low,” he said, adding that doctors face tremendous peer pressure, the possibility of being fired, and financial ruin if they go against the grain.
Chupp is hopeful either the appeal is successful or HHS will be able to revise the rules to pass muster by the court. Otherwise, he said, “It would be a real loss.”
HHS may need further guidance from a federal appeals court. An October ruling by U.S. District Judge Reed O’Connor of Texas blocked a part of the Affordable Care Act barring discrimination in healthcare based on “gender identity and termination of pregnancy,” sending the matter back to HHS for reconsideration. These twin decisions are not necessarily incompatible, but at least muddy the water and may leave agency regulators hesitant to make the next move.