November 6, 2019 at 4:37 pm EST | by Chris Johnson
Judge vacates Trump admin’s anti-LGBT ‘conscience rule’ for health workers
Log Cabin, gay news, Washington Blade
A federal judge has ruled against a conscience rule implemented by HHS under President Trump. (Photo by palinchak via Bigstock)

A federal judge in New York has vacated a Trump administration “conscience rule” allowing health care workers to get out of procedures with which they have religious objections, such as abortion or gender reassignment surgery.

In a lengthy 147-page decision against the “conscience rule,” U.S. District Judge Paul Engelmayer, an Obama appointee, concludes the measure was enacted in contravention of the Administrative Procedures Act, calling the violations “numerous, fundamental and far-reaching.”

“The court’s finding that HHS lacked substantial rule-making authority as to three of the five principal conscience provisions nullifies the heart of the rule as to these statutes,” Engelmayer writes.

The Trump administration, Engelmayer concludes, also issued the rule in violation of Title VII of the Civil Rights Act of 1964 and the Emergency Medical Treatment & Labor Act with respect to health care employment and emergency contexts. 

Further, the rule’s assertions about discrimination against health care workers objecting to certain procedures over religious beliefs doesn’t meet the definition of the term discrimination, Engelmayer writes.

Although the Trump administration asserted it implemented the rule in a “significant increase” of complaints by health care agencies unsure of the rules for exemptions, Engelmayer finds that claim “flatly untrue.”

HHS cites 358 complaints between November 2016 and the end of fiscal year 2018, but Engelmayer notes the Trump administration has admitted six percent are duplicates, leaving only 343, and “only around 20 complaints implicate any of the conscience provisions.”

“In all events, far from reflecting a ‘significant increase’ in complaints implicating the Conscience Provisions as claimed by HHS, the administrative record reflects either no increase at all, or that any increase was so small as to be asymptotic to zero,” Engelmayer writes.

Although the litigation also contended the rule is unlawful because it violates the Establishment Clause under the First Amendment prohibiting the U.S. government from aligning with any particular religion, Engelmayer rules “the challenge here fails” in this regrad.

“Like the Conscience Provisions it purports to construe, the Rule equally accommodates all conscience-based objections to covered health care services and research activities,” Engelmayer writes. “That is so whether the individual objector’s qualms derive from a religious or a secular moral conviction.”

The Department of Health & Human Services made the conscience rule final in May to the consternation of progressive activists, who objected to the threat to access to abortion and the potential to refuse service to LGBT people, including for gender reassignment surgery and other transition-related care for transgender people.

Jamie Gliksberg, a senior attorney with the LGBT group Lambda Legal, said the decision against the rule “has likely saved countless lives.”

“Courts across the country are seeing the denial of care rule for what it is, an egregious violation of the civil rights of and a direct attack on the lives of women, LGBT people, religious minorities and many others,” Gliksberg said. “The denial of care rule was deeply rooted in animus against some of our most marginalized and vulnerable communities, and that has no place in our society. We are thrilled about today’s decision.”

The decision is the first court ruling against the “conscience rule” amid a plethora of lawsuits in federal courts against the measure. According to the Equality Case Files, eight cases are pending in four courts challenging the HHS rule.

The ruling from Engelmayer is a consolidated case initiated by three sets of plaintiffs: One of state plaintiffs consisting of 19 states, D.C. and three local governments; another is Planned Parenthood; and another is National Family Planning and Reproductive Health Association & Public Health Solutions, Inc., which provide abortion services.

Caitlin Oakley, an HHS spokesperson, declined to comment on the ruling against the “conscience rule.”

“HHS, together with DOJ, is reviewing the court’s opinion and so will not comment on the pending litigation at this time,” Oakley said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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