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A Judge Struck Down A Trump Policy That Would Have Let Health Workers Refuse Abortion And Sex Reassignment Services

The judge said that the Trump administration's justification for the rule’s existence was “flatly untrue.”

Posted on November 6, 2019, at 5:06 p.m. ET

Andrew Caballero-reynolds / Getty Images

WASHINGTON — A federal judge struck down a Trump administration rule that would have allowed health workers to refuse to perform or assist with medical procedures like abortion, assisted suicide, or sex reassignment services on Wednesday, saying it violated the Constitution and that President Donald Trump’s Department of Health and Human Services (HHS) made “flatly untrue” claims to justify the rule’s existence.

The rule, called a “Conscience Provision,” would have allowed health care providers and workers receiving federal funds to opt out of those procedures if they violated their “conscience” or religion. If a health care organization was found to repeatedly “discriminate” against its workers for their religious or moral opposition to certain procedures, the rule stated, they could lose their federal funding.

District Judge Paul Engelmayer for the Southern District Court of New York wrote in his 147-page opinion Wednesday that while the Conscience Provision seeks to “recognize and protect undeniably important rights,” the rule in its current form is “contrary to law,” was implemented “arbitrarily and capriciously” by HHS, was based on claims that were “factually untrue,” conflicts with the Civil Rights Act of 1964, and is unconstitutional.

The Conscience Provision was scheduled to go into effect on Nov. 22, after being postponed repeatedly due to several lawsuits. All of these lawsuits challenging the rule — which span “19 States, the District of Columbia, several units of local government, and include a number of associations of health care providers,” the opinion said — were combined to go before Engelmayer in SDNY.

Abortion and LGBTQ rights proponents argued that the rule was designed to enable discrimination against transgender patients and people seeking abortions. They said the rule would make it even more difficult for people in vulnerable positions to get the care they need. The Trump administration and other proponents of the rule argued that it prevented workplace discrimination against health workers for their religious or moral beliefs, and enabled them to keep their jobs without facing moral conflict.

When it was first introduced in January 2018, the rule repealed an Obama-era discrimination protection rule that Trump’s HHS said “proved inadequate.” Trump’s replacement rule sought to specifically protect “providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide.”

The Conscience Provision does not refer to transgender people explicitly, but it relies on the 1973 Church Amendment, which, in addition to addressing abortions, also protects federal funding for recipients who object to sterilizations. HHS’s rule argued the Church Amendment allows a provider to deny any service that results in sterilization, meaning it could allow workers to refuse to provide hormone therapy, hysterectomies, orchiectomies, and other transition-related services for transgender people, Gillian Branstetter, a spokesperson for the National Center for Transgender Equality, told BuzzFeed News when the rule was finalized in May.

Many doctors performing abortions or care related to sex reassignment services are specialists who chose to focus on these areas and would therefore be unlikely to object. However, the rule explicitly applies to those who “assist in the performance” of these services as well. This means nurses, pharmacists, phlebotomists, or anesthesiologists, among others, could refuse to help with a health service, making the procedure dangerous or even impossible, opponents of the rule argue.

“Flatly untrue”

One notable part of Engelmayer’s lengthy opinion is his analysis of the evidence presented by the lawyers opposing the rule. The lawyers argued that HHS’s entire basis for the rule’s existence — that there is a major problem in the US of health workers being discriminated against at work for refusing to perform certain procedures — was a lie.

The Conscience Protection rule was first proposed in conjunction with the launch of HHS’s Conscience and Religious Freedom Division. This division was created by the Trump administration to monitor and respond to the very complaints from health workers that the rule pertains to: discrimination due to religion and conscience. After Trump’s team launched the division, the head of the HHS Office of Civil Rights Roger Severino, said the number of complaints increased significantly from the number of complaints made during former president Barack Obama’s administration, bouncing from only a few such complaints a month to more than 350 in a month.

"It shows it’s a real problem out there,” Severino on a call with press about the rule in May, adding that the increase was due to workers feeling like their complaints would finally be heard. “Some doctors said they felt threatened from becoming an OBGYN, felt they would be forced to perform abortions,” he said.

During the case, the lawyers challenging the rule went through all these complaints and analyzed them to check if the increase being claimed by HHS was correct.

Of the 336 unique complaints (22 were exact duplicates, the opinion said), 79% pertained to vaccinations and had nothing to do with the issues addressed in the Conscience Protections. Of that, another 49 complaints were about other unrelated issues, leaving only about 20 complaints that could be construed as “potentially related to the Conscience Provisions,” Engelmayer wrote. “This conceded fact is fatal to HHS’s stated justification for the Rule.”

“HHS’s central factual claim of a ‘significant increase’ of complaints of Conscience Provision violations is flatly untrue,” Engelmayer continued. “This alone makes the agency’s decision to promulgate the Rule arbitrary and capricious.”

All the other violations

The lack of justification for the rule, as well as the lack of clear communication with which the rule was rolled out, Engelmayer wrote, violated the Administrative Procedure Act. Under the APA, HHS does not have the authority to create a rule with the effects the Conscience Provision has, he said. It also conflicts with the Civil Rights Act of 1964, in that abiding by the rule would pose an “undue hardship” for the health care organization. The Civil Rights Act states that an employer does not have to accommodate an employee’s religious or moral beliefs if they can prove it places an undue hardship on their ability to conduct their business.

The fact that the rule would enable the government to defund hospitals and health care facilities that they determine are repeatedly forcing workers to perform services that violate their beliefs, violates two portions of the Constitution, Engelmayer wrote, the Separation of Powers and the Spending Clause.

The court found the rule violates both clauses, both of which pertain to Congress’s powers over the use of federal funds. Congress has the power to fund or defund federal organizations, not the executive branch, and giving the Trump administration the ability to use Congress’s powers to punish organizations who violate their rule is unconstitutional, the judge found.

But Engelmayer did not agree with one of the plaintiff’s main arguments — that the rule violated the Establishment Clause, a part of the First Amendment of the Constitution that prevents government from legally favoring one religion over another.

“As the Supreme Court has long taught, religious accommodations are often appropriate and sometimes necessary, including to protect the free exercise of religion,” Engelmayer wrote. The rule does not favor one religion over another, or religion over no religion at all, because it includes an accommodation for those who oppose services for “moral” reasons, which Engelmayer said is a secular concept.

Engelmayer’s long and thorough opinion is tough on HHS and declares firmly that the rule cannot exist as is. However, the judge explicitly left room in his opinion to allow the Trump administration to try again.

“The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions,” Engelmayer wrote in his conclusion. “In the future, however, the agency must do so within the confines of the APA and the Constitution.”

The Trump administration can still appeal the rule to a higher court, and even the Supreme Court. HHS did not immediately respond to BuzzFeed News’ inquiry about whether they plan to appeal.

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