December 2019 Church & State Magazine | Featured

The Trump administration’s dangerous “Denial of Care Rule” – a reckless provision that invites any health care worker, including doctors, nurses, paramedics, orderlies and receptionists, to deny care to any patient on the basis of the worker’s religious or moral beliefs – is on life support after a trio of rulings against it last month, including one in legal action sponsored by Americans United and its allies.

The first blow came Nov. 6 when the U.S. District Court for the Southern District of New York struck down the rule, invalidating it nationwide. In his decision in State of New York v. U.S. Department of Health and Hu­man Services, U.S. District Judge Paul A. Engelmayer did not rule on church­-state grounds but held that HHS lacks the authority to make a rule of this scope.

Asserting that the Department of Health and Human Services’s approach “was sufficiently shot through with glaring legal defects,” Engelmayer voided the entire rule nationwide. (The rule had been scheduled to go into effect Nov. 22.)

Englemayer also stated that HHS’s justification for the rule – that many health care workers had demanded it because they felt that their religious-freedom rights were being violated – was false. Officials at HHS had asserted that conscience complaints filed by health care workers skyrocketed from one complaint to 343 over a 12-month period. That number turned out to be false.

The Washington Post noted that officials at HHS apparently arrived at this figure by including complaints about vaccinations, which would not have even been affected by the Denial of Care Rule. In fact, 80 percent of the complaints were about vaccinations. Additionally, some complaints were from parents concerning treatment for their children; they weren’t from health care workers at all.

The real figure was much lower. Engel­mayer noted that only 21 of the complaints that HHS provided the court have even a tangential relationship to religious or moral objections. During oral arguments in the case, a government lawyer was forced to concede this was true, calling the figure “in that ballpark.”

Americans United hailed the decision.

“We’re thankful Judge Engelmayer blocked President Trump’s dangerous Denial of Care Rule from going into effect,” asserted Rachel Laser, president and CEO of Americans United, in a statement to the media. “The Denial of Care Rule is a stark violation of religious freedom – no patient should be denied medical treatment because of someone else’s religious beliefs. The court’s decision today protects both religious freedom and patients’ health.”

The following day, a second federal court ruling in a separate case declared the Denial of Care Rule void. U.S. District Judge Stanley A. Bastian of the Eastern District of Washington state ruled from the bench in State of Washington v. Azar that the HHS directive cannot be enforced.

The third strike came Nov. 19, when a federal court ruled in a case from California brought by AU and allied groups. U.S. District Judge Wil­liam Alsup declared the Denial of Care Rule unlawful and blocked it from going into effect.

“When a rule is so saturated with error, as here, there is no point in trying to sever the problematic provisions. The whole rule must go,” Alsup wrote in his order, which came in three cases, including County of Santa Clara v. HHS. The legal action was filed by Americans United, the Center for Reproductive Rights, Lambda Legal, the County of Santa Clara and pro bono legal counsel Mayer Brown LLP.

“Today, Judge Alsup threw out the Trump administration’s Denial of Care Rule in its entirety,” said AU’s Laser in a media statement. “One after another, three judges across the country have now made it crystal clear that it was unlawful for the Trump administration to misuse religious freedom to justify harming patients. These decisions, coupled with Congress’ introduction of the Put Patients First Act, should send an emphatic message to President Trump that no patient should ever be discriminated against or denied health care based on who they are, who they love or what they believe.”

The organizations have pointed out that, under this inhumane rule, anyone could be denied care, even in life-threatening circumstances, because of who they are, whom they love, what they believe or what medical care they’re seeking. Women, LGBTQ people, patients with AIDS or HIV and religious minorities are the intended targets of the rule, but AU notes that other Americans are also at risk.

AU asserts that the fundamental principle of religious freedom guarantees all Americans the right to practice their faith, or no faith at all, as long as they don’t harm others. The Denial of Care Rule runs afoul of this standard. AU says the federal government should protect patients, not facilitate abusive discrimination under the guise of “religious freedom.”

Americans United also joined the Baltimore City Law Department and the law firm Susman Godfrey to bring a second case challenging the rule, Mayor and City Council of Baltimore v. Azar. That case was scheduled to be argued last month, but on Nov. 12, the federal judge hearing the case said he would put the matter on hold for now in light of the other rulings.

"We’re thankful Judge Engelmayer blocked President Trump’s dangerous Denial of Care Rule from going into effect. The Denial of Care Rule is a stark violation of religious freedom – no patient should be denied medical treatment because of someone else’s religious beliefs. The court’s decision today protects both religious freedom and patients’ health." -- Rachel Laser, Americans United

To support the cases, AU and its allies pulled together testimony from about 30 medical professionals and health care administrators who explained the myriad ways the Denial of Care Rule will exacerbate discrimination, erect more barriers for people trying to access health care and make staffing more difficult and costly for providers.

Officials from Santa Clara County and Baltimore explained how the rule threatens communities. Examples included:

• Sexually transmitted diseases could be spread if they go untreated, or if medications that can help prevent HIV are not provided.

• A rise in unintended pregnancies because of the unavailability of birth control, abortions and other reproductive care can domino into a host of socio-economic challenges.

• A refusal to provide immunizations can cause preventable diseases to spread through a community.

“Refusals under such a rule would result in denials of timely care to Baltimore residents, and it is hard to overstate the harms that would follow, both for individual patients denied care and for public health in Baltimore at the population level,” said Rebecca S. Dineen, assistant commissioner for the Baltimore City Health Department Bureau of Maternal and Child Health.

The Denial of Care Rule and its threat to withhold federal funding “would compromise the Public Health Department’s ability to prevent public health emergencies and outbreaks, to prevent chronic diseases, to provide equal opportunity to vulnerable children for a healthy start and optimal health, and to foster healthy families and healthy communities,” said Sara Cody, director of Santa Clara County’s public health department.

AU says the rule could also negatively affect emergency services. James Matz, battalion chief of emergency medical services for the Fire Department of Baltimore City, and Ken Miller, medical director for Santa Clara’s EMS Agency, told courts how critical care could be delayed and patients’ lives be put at risk if EMS employees refuse to treat people in emergencies.

“[T]he Rule will create an impossible dilemma for Baltimore EMS and will endanger the lives of the people we serve,” Matz said. “If any employee on a medic unit decided, at the scene of a call, that they could not perform their job for religious, moral, or ‘other’ reasons, the results could be catastrophic.”

Congress is also responding to the Denial of Care Rule. On Nov. 12, U.S. Reps. Barbara Lee (D-Calif.) and Chris Pappas (D-N.H.) along with U.S. Sen. Patty Murray (D-Wash.) introduced the Put Patients First Act, which would protect patients’ health by blocking the Denial of Care Rule from being enforced or implemented by HHS.

“Even as courts block President Trump’s dangerous Denial of Care Rule, it’s clear the administration will continue to push this rule and other policies that misuse religious freedom to license discrimination and harm to others,” Laser said in a statement. “It’s more important than ever that Con­gress enact extra safeguards to protect people’s health and fundamental rights. We thank Reps. Lee and Pappas and Sen. Murray for introducing the Put Patients First Act and urge Con­gress to pass it swiftly. All of our lives and well-being are on the line.”       

This story includes additional reporting by Liz Hayes.