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New York Federal Judge Vacates Trump Administration “Conscience” Regulation

Posted on: November 12th, 2019 by Art Leonard No Comments

U.S. District Judge Paul A. Engelmayer issued an extraordinarily lengthy opinion on November 6, concluding that a regulation adopted by the Trump Administration’s Department of Health and Human Services (HHS) intended to protect from discrimination employees in the health care industry who refused to provide services because of their religious beliefs is invalid.   The case is State of New York v. U.S. Department of Health and Human Services, 2019 WL 5781789, 2019 U.S. Dist. LEXIS 193207 (S.D.N.Y.).

 

The lawsuit was brought by a coalition of states, cities, Planned Parenthood, and a Family Planning and Reproductive Health services organization, that stood to lose substantial federal funding for their programs if they were found to violate the regulation, which imposed substantial compliance requirements on them.  They argued that the measure violated the First Amendment’s prohibition on an “establishment of religion.”  But Judge Engelmayer, rejecting a “facial” Establishment Clause challenge, instead premised his ruling on other arguments by the plaintiffs, asserting violations of the Administrative Procedure Act (APA) and the Spending Clause and Separation of Powers requirements of the Constitution.

 

Judge Engelmayer summarized the Rule, which was adopted on May 21 (84 Fed. Reg. 23,170 – codified at 45 C.F.R. pt. 88), originally set to go into effect on July 22, to “interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection.”  The statutory provisions, usually added to particular laws as amendments offered by legislators during congressional consideration of the bills, are usually referred to as “conscience provisions.” After this lawsuit was filed, HHS agreed to delay the effective date of the regulation until November 22, so it has never actually gone into effect and will not go into effect any time soon unless the government obtains a stay of Judge Engelmayer’s opinion pending an appeal.

 

Most of the conscience provisions are intended to protect employees who refuse to participate in performing abortions, sterilizations, or assisted suicides, but some go further, extending to any medical practice or procedure, and theoretically could protect employees who refuse to provide services to LGBTQ people due to religious or moral objections.  While some of the provisions were aimed specifically at licensed health care professional employees who actually perform such procedures, others could theoretically apply to any employee – such as an orderly, an ambulance driver, or anybody else employed in a supportive or administrative role – whose religious or moral beliefs would be compromised by providing the service in question.

 

In addition to describing the various statutory conscience provisions, Judge Engelmayer noted a provision in Title VII of the Civil Rights Act of 1964, which requires employers to make a “reasonable accommodation” to the religious practices or beliefs of employees, with the test of reasonableness being whether the accommodation would impose an undue hardship on the employer.  The Supreme Court has traditionally interpreted this provision to require employers to bear no more than a “de minimus” expense to accommodate religious objectors.

 

The George W. Bush administration promulgated a conscience regulation late in 2008 that was to take effect on the first day of the Obama Administration, but a legal challenge was filed and although “much of the rule” did take effect while the litigation continued, many contentious provisions were never rigorously enforced and HHS rescinded much of that Rule in 2011.

 

After taking office, President Trump issued an executive order titled “Promoting Free Speech and Religious Liberty,” which directed the Attorney General to “issue guidance interpreting religious liberty protections in federal law” and generally stating that the federal government should protect religious freedom to the extent possible under the Constitution.  On October 6, 2017, Attorney General Jeff Sessions issued a memorandum proclaiming that under the 1st Amendment’s Free Exercise Clause, an individual has “the right to perform or abstain from performing certain physical acts in according with one’s beliefs,” mentioning many of the statutory conscience provisions.  HHS then proceeded to issue a notice of proposed ruling-making to translate Sessions’ memorandum into written regulations, publishing its “final rule” on May 21, 2019.

 

Judge Engelmayer found that the 2019 Rule “substantially expands” on the 2008 Rule, applying to more than 30 conscience provisions (where the 2008 Rule applied to only three of them). He includes a detailed description of the Rule, including its very broad definition of which employees and entities are covered, a very broad definition of what counts as “discrimination,” and detailed procedures that employers in the health care field are supposed to follow to ensure that employees know about their rights to object or abstain, including requirements to certify their compliance with the Rule as a condition of receiving funding under federal programs, such as Medicare.  The stated intent of the Rules is to go as far as the Constitution and statutes allow in protecting those who object to doing their job because of religious, moral or ethical objections to particular procedures or practices by holding the loss of funding over employers who fail to accommodate religious objectors to the extent spelled out in the Rule.

 

The plaintiffs advanced five constitutional arguments against the rule.  They first argued that it violates the Establishment Clause, by forcing recipients of federal funds to “conform their business practices to the religious practices of their employees, imposing an absolute duty to accommodate such practices,” going far beyond the existing accommodation duty under Title VII of the Civil Rights Act.  Second, they argued it violates the Spending Clause because the threat to withhold all federal funding for is “unconstitutionally coercive” and because the conditions it imposes are “ambiguous, retroactive, not reasonably related to the purpose of HHS’s programs under which the funds are provided, and thus unconstitutional.”  They argued that the Rule violates the constitutional separation of powers by, among other things, empowering the executive branch to unconstitutionally impound funds that Congress has appropriated.  They also made two Fifth Amendment arguments: void for vagueness as a result of ambiguities and inconsistences with other federal laws, inviting arbitrary enforcement; and violating the due process rights of patients to privacy and liberty, in particular by interfering with patients’ ability to obtain abortions and other procedures to which some health care workers object.

 

Judge Engelmayer rejected the government’s argument that the rule was merely a “housekeeping” measure intended to consolidate enforcement of the various statutory conscience provisions by centralizing enforcement in HHS’s Office of Civil Rights and to standardize definitions and requirements that varied among the thirty statutes.  Instead, he found, the Rule made substantive changes in the law.

 

“On this threshold dispute,” wrote the judge, “there is a definite answer.  Although the 2019 Rule has housekeeping features, plaintiffs’ description of it as largely substantive – and, indeed, in key respects transformative—is correct.  And HHS’s characterization of the Rule as solely ministerial cannot be taken seriously.”  He noted that the government had actually abandoned this position during oral argument.  “Whether or not the rule was properly adopted,” he wrote, it “unavoidably would shape the primary conduct of participants through the health care industry. It would upend the legal status quo with respect to the circumstances and manner in which conscience objections must be accommodated.  And the maximum penalty the Rule authorizes for a violation of the Conscience Provisions – the termination of all of a recipient’s HHS funding, from whatever program derived – is new, too.”

 

Supporting this conclusion, Judge Englemayer explained how the rule vastly expanded employers’ religious accommodation requirements under Title VII of the Civil Rights Act, how it substantially broadened the definition of “protected activities” of religious objectors, down to the level of protecting a receptionist who might refuse to schedule a patient for a procedure to which the receptionist has ethical objections.  Unlike the statutory conscience provisions, he noted, the Rule would “for the first time” permit “abstention from activities ancillary to a medical procedure, including ones that occur on days other than that of the procedure.”  It also extended the definition of “covered entities” from health care providers to pharmacists and medical laboratories, and significantly expands the financial exposure of covered entities by authorizing draconian cut-offs of funding.

 

Judge Engelmayer decided the Rule is not a facial violation of the Establishment Clause, which would require finding that all of its provisions are unconstitutional in all their potential applications, but he acknowledged that it could be challenged “as applied” to particular situations – a test that might never arise because of his action in declaring the Rule invalid on other grounds.

 

First, the judge found that HHS did not comply with the requirements of the Administrative Procedure Act governing the adoption of regulations, by going beyond the limits of rulemaking authority.  Agencies must base their rules and regulations on statutory policy decisions expressed by Congress, and cannot engage in legislating beyond those policy decisions.  The judge found that in this Rule HHS went over the line into legislation, especially noting the way the Rule expanded definitions, covered entities, enforcement authority, and penalties.  He found that HHS did not have authority under the APA to make all of these substantive legal changes without specific authorization in the statutes.

 

The sheer scale of the Rule’s potential impact played a large part in the decision.  The judge found that the Rule “puts in jeopardy billions of dollars in federal health care funds.  In fiscal year 2018, for example,” he wrote, “the State Plaintiffs received $200 billion in federal health care funding.  New York alone received $46.9 billion. The Provider Plaintiffs similarly received hundreds of millions in funding from HHS.”  He also noted the political significance of the Rule, as it took positions beyond those actually taken by Congress on such controversial issues as abortion and assisted suicide.

 

“In a case involving economic consequences and political dynamics on such a scale,” wrote the judge, “the Supreme Court teaches that ‘we expect Congress to speak clearly’ were it to delegate rulemaking authority. . .  Far from speaking clearly here, in none of the three statutes at issue did Congress give any indication that it intended to subcontract the process of legal standard-setting to an administrative agency in particular, or HHS in particularly,” noting that the three principal statutes with Conscience Provisions don’t even mention HHS.  And, the judge rejected the government’s contention that such a delegation was “implicit” in the enactment of those conscience provisions.  He noted that the Supreme Court had rejected a similar “implicit delegation” argument in connection with its interpretation of Title VII’s accommodation provisions and the attempts by the EEOC to interpret them.

 

He also concluded that HHS did not act in accordance with law in promulgating the rule, having taken shortcuts (rather typical of the Trump Administration) in skirting the detailed procedures set out in the APA.  The two most important flaws the court found were establishing rules that conflict with Title VII, and rules conflicting with the Emergency Medical Treatment and Labor Act (EMTLA), by purporting to authorize employees with religious objections to withhold services in emergency situations.  The judge found that two basic Title VII concepts that the Rule “overrides” are key components of the specific language Congress adopted in 1972 amendments to Title VII “to address workplace religious objections.”  An agency cannot displace express statutory provisions by adopting a contrary rule.  Similarly, he noted that EMTLA “does not include any exception for religious or moral refusals to provide emergency care” and courts had declined to “read in” exceptions to that statute’s mandates, but the HHS Rule “applies in emergency-care situations,” purporting to create a “conscience exception” in a law that does not have one.

 

Also, turning to the APA’s substantive requirements, an agency that is adopting a rule that changes the law is required to document the need for such a change.  In this case, HHS just lied, claiming that there had been a substantial increase in complaints by health care employees about being forced to perform objectionable procedures or being disciplined for refusing to do so.  “In fact, upon the Court’s review of the complaints on which HHS relies,” wrote Engelmayer, “virtually none address the Conscience Provisions at all, let alone indicate a deficiency in the agency’s enforcement capabilities as to these laws.  And HHS, in this litigation, admitted that only a tiny fraction of the complaints that its Rule invoked as support were even relevant to the Conscience Provisions.  A Court ‘cannot ignore the disconnect between the decision made and the explanations given,’” he wrote, quoting from Chief Justice John Roberts’ opinion in June striking down the Trump Administration’s attempt to add citizenship questions to the 2020 Census Forms.  In that case, the Supreme Court found evidence that the Administration wanted to add the questions for political purposes, but prompted the Justice Department to come up with a phony justification invoking data needs to enforce the Voting Rights Act, even though experts in the Census Bureau warned that adding the questions would make the Census count less accurate by deterring non-citizens resident in the U.S. from participating.  He pointed out that the large majority of religiously-connected complaints received by HHS had to do with vaccinations, “which HHS admits fall outside the scope of the Conscience Provisions and the Rule.”

 

He also found unconvincing other explanations offered by HHS, and was especially critical of ways in which the Final Rule differed from the Rule as it was originally proposed and published for public comment concerning the definition of “discrimination.”  The judge concluded, in sum, that failed procedures in adopting the Rule under the APA were sufficient to invoke the court’s authority to declare the rule invalid and order it to be “vacated.”

 

But there was more, because the judge also found constitutional violations both of separation of powers and the Spending Clause.

 

Judge Engelmayer focused on the Rule’s remedial provision authorizing the termination of all HHS funding to an entity found to have violated the Rule, finding that this had not been authorized by Congress.  Thus, its adoption was a serious violation of the separation of powers.  He agreed with plaintiffs that the Rule “is inconsistent with the separation of powers because it allows HHS to withhold congressionally-appropriated federal funds to an extent that neither the [statutory] Conscience Provisions nor any other statute authorizes.  By claiming the power to do so, plaintiffs argue, HHS arrogates to itself, an executive agency, a power the Constitution allocates uniquely to Congress.”

 

Responding to this argument, the judge pointed out that an agency “must exercise its delegated spending authority consistent with specific congressional grant” and that an “agency may not withhold funds in a manner, or to an extent, unauthorized by Congress.” Thus, the remedial provision of the Rule exceeds the agency’s authority.

 

Furthermore, he found other violations specifically routed in the Supreme Court’s interpretation of the Spending Clause.  He noted four principles relevant to this case: “conditions based on the receipt of federal funds must be set out unambiguously,” the “financial inducement offered by Congress” must not be “impermissibly coercive,” the conditions must relate “to the federal interest in the project and to the overall objective thereof,” and “the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”  Judge Engelmayer found it clear that the Rule violated at least the first two of these principles, pointing to specific ambiguities and internal contradictions in the Rule. And the draconian forfeiture of all funding as a remedy for a violation of the Rule was “impermissibly coercive.”

 

Finally, he concluded that the faults he had detected merited an order to the agency to vacate the Rule.  He pointed out that it has long been “standard practice under the APA” for a court to order that a rule be vacated when the court determines that “agency regulations are unlawful.”  He quoted a Supreme Court opinion on point, stating that “regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the statutory minimum found in that Act.”  The APA itself says that a court shall “hold unlawful and set aside agency action, findings and conclusions” that the court finds to be “arbitrary and capricious, not in accordance with law, in excess of statutory authority, unconstitutional, or made without observance of procedures required by law.”

 

The judge rejected the government’s suggestion that he could go through the Rule stripping out objectionable parts and letting the rest go into effect, commenting that “the APA violations that the Court has found… are numerous, fundamental, and far-reaching.  The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes.  The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting health care employment and emergency contexts.  The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule.”  Letting a few selected provisions go into effect would “ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”

 

He also rejected HHS’s suggestion, common to Trump Administration arguments when courts are finding its executive actions invalid, that his order should be limited in effect to the Southern District of New York, or just to the named plaintiffs in the case, pointing out that this would lead to a proliferation of litigation around the country “to assure that such a Rule was never applied,” finding plenty of precedential support for this position in prior court of appeals opinions supporting trial court orders to vacate unlawfully promulgated rules.

 

“The Conscience Provisions recognize and protect undeniably important rights,” wrote Engelmayer.  “The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions.  In the future, however, the agency must do so within the confines of the APA and the Constitution.”

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.