‘Whole rule must go’ — third judge tosses ‘conscience rule’


A third judge has ruled for plaintiffs challenging a federal rule that was written to allow individual healthcare workers as well as healthcare organizations to decline to provide care that conflicted with their religious and moral beliefs or mission.

The “conscience rule” had been set to go into effect Nov. 22 but has been struck down in three legal cases.

Tuesday, Judge William Alsup in the U.S. District Court for the Northern District of California, said the rule was “saturated with error.” “The whole rule must go,” he wrote in his order.

The plaintiffs in this case were San Francisco and San Francisco County. The state of California, Santa Clara County, the Center for Reproductive Rights, Lambda Legal and Americans United for Separation of Church and State joined in arguing for the rule to be voided.

“The decision today is a victory for healthcare equality and patients’ rights,” San Francisco City Attorney Dennis Herrera said in a statement issued after the order was issued. “Discriminatory regulations cannot be allowed to threaten patient health. No one should have to fear being denied critical medical service in their time of need.”

Among providers that could have been affected by the conscience rule were assisted living communities that accept payments from Medicaid, because the federal government could have withheld funds to organizations deemed not to be in compliance. Skilled nursing facilities and other long-term care facilities accepting federal funding also could have been affected.

The final rule made several references to abortion but also referred to advance directives, “assisted suicide, euthanasia, or mercy killing,” “compulsory healthcare or services generally, and under specific programs for hearing screening, occupational illness testing; vaccination and mental health treatment” as well as “certain requirements under Medicare and Medicaid that may burden their exercise of their religious beliefs regarding medical treatment.” Elder advocacy group SAGE also noted that some feared that the rule could make it easier to discriminate against LGBTQ individuals.

Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York vacated the rule Nov. 6., with Judge Stanley A. Bastian of the U.S. District Court for the Eastern District of Washington also vacating it the next day. Bloomberg reported that a trade group representing Christian healthcare providers, and one of its members, plans to appeal the Nov. 6 ruling.

LeadingAge and the American Health Care Association / National Center for Assisted Living had submitted comments when the Department of Health and Human Services Office for Civil Rights first proposed the rule in January 2018.

AHCA / NCAL had requested that HHS not apply the rule to long-term and post-acute care providers, saying it would increase the “regulatory burden” on these providers and take away from time for providing care. HHS did not heed the request.

A LeadingAge spokeswoman previously told McKnight’s Senior Living that the organization “supports religious freedom and the rights of all healthcare providers and their staff to live up to their religious beliefs. We do not encourage intolerance and discrimination.”

The final rule was published in May.

This article originally appeared in McKnight’s Senior Living on November 20, 2019.

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