Author’s Note: On the morning of Wednesday, November 6, a New York Federal judge issued a ruling that invalidated the Trump administration's "conscience protection" rule. The Health and Human Services rule was intended to protect those who did not want to engage in abortions, assisted suicide, or other activities that violated their religious or moral beliefs. Many organizations are outraged at this decision, claiming it was made by an "activist judge" who is opposed to their morals and values.
While I strongly support the rights of conscience of doctors not to engage in these kinds of activities, this was really a decision about executive power and whether any sitting president can put rules in place that are not based on existing statutes passed by Congress. I also believe that rights to free exercise of religion in the context of healthcare conscience are presently protective, although they may need to be shored up with legislation or legal action within the court system.
However, given the fact that our nation is always within four years of what could be a massive shift in politics, it may not be wise to give any sitting President the power to pull together various statutes to form new rules that impact the free exercise of religion.
You may not agree with me, but I've read the decision and in view of not only current politics but what we can expect to see this time next year, I think the judge made the right call.
Michael Peabody, Esq.
Founders' First Freedom
In a 147-page ruling issued on Wednesday, November 6, New York Federal Judge Paul Engelmayer found that the Trump administration's "conscience act" exceeded the president's authority but did not violate the Establishment Clause. Given its procedural defects, the rule was invalidated in its entirety.
In May 2019, the U.S. Department of Health and Human Services ("HHS") announced a rule entitled, "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority", 45 CFR Part 88, ("HHS rule") that interpreted more than 30 existing laws and regulations as providing individuals and entities the right to refrain from activities that violated their conscience.
Nineteen states and several Planned Parenthood organizations immediately filed for an injunction, claiming that the act violated the Establishment Clause and went beyond the authority delegated to HHS under the Administrative Procedure Act ("APA").
The Executive Branch has limited powers and must rely on existing legislative authority
The APA, 5 U.S.C. §706, enacted in 1966, allows a court to set aside an agency action for any of six reasons, but suffice it to say that the Executive Branch cannot simply develop new law and impose it as a regulation. Under the legal doctrine of the "separation of powers," each branch has its own job to do. Congress makes the law, the Administration carries out the law, and the Judicial Branch interprets the law.
In this case, the HHS rule read more like legislation than an interpretation of existing legislation. It had its own set of definitions and imposed new rules, duties normally reserved for Congress. The rule went as far as to tie violations to the termination of HHS funding, a remedy not provided in existing law.
The court found that the HHS rule added substantial content to the existing laws upon which it was purportedly based and that the HHS rule "unavoidably would shape the primary conduct of participants throughout the health care industry."
Because it was creating new law, the court found that HHS lacked authority to regulate the conduct of funding recipients with regard to conscience objections. It could only address the specific areas of conduct mentioned by the conscience provisions in existing law. Existing laws, including the Affordable Care Act ("ACA"), Medicare, and Medicaid, already allow providers to object to services on religious or moral grounds.
The court finds the HHS Rule did not violate the Establishment Clause
The Court did not find that the rule violated the Establishment Clause because it did not require the states to engage in unconstitutional activity. It recognized both religious and secular moral objections to certain medical procedures, and equally accommodated all conscience-based objections. The court also determined that it did not violate the Establishment Clause by providing excessive free exercise of religion.
The court invalidated the rule as a whole
Although the HHS rule included language that if parts of the rule were found unconstitutional, they could be taken out while the rest would stand, the court ruled that the entire rule violated the APA, and that to try to remove parts could actually run contrary to HHS' goals in passing the rule.
The rights of medical professionals are a major concern, but they still have the right to pursue remedies under the Free Exercise Clause of the U.S. Constitution if they are forced to act against their conscience. While Congress may not be inclined to protect their rights with legislation, they may be able to win those freedoms in court.
This is a case about executive power and whether any U.S. President can piece together existing legislation to form a fundamentally different new law. While conservatives may be very disappointed with this ruling, they may want to consider what would happen if a left-leaning administration engaged in similar lawmaking activity. In that sense, this decision might prove to be a blessing in disguise.
We invite you to join our community through conversation by commenting below. We ask that you engage in courteous and respectful discourse. You can view our full commenting policy by clicking here.