'Patients Will Die': One County's Challenge To Trump's 'Conscience Rights' Rule

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Moral and religious objections to providing health care sometimes arise in medicine: A medical assistant might not agree with blood transfusions. A nurse might not want to assist in sex reassignment surgery.

Last month, the U.S. Department of Health and Human Services put out a new rule that "implements full and robust enforcement" of existing laws that protect what the administration calls "conscience rights" for health care workers. The rule is set to go into effect on July 22.

As NPR has previously reported, the new rule expands the kinds of workers who are covered by those laws — to include, for example, reception and billing staff. Even though relatively few of these complaints get submitted to HHS each year, this emphasis on religious freedom has been a hallmark of the department under the Trump administration.

HHS was sued right away over the expansiveness of its new rule — by the states of New York and California and by physician groups, clinics and others.

Santa Clara County in California is asking a federal judge in U.S. District Court, Northern District of California this week to put the Trump rule on hold while the legal process plays out — San Francisco and the state of California filed separate motions for preliminary injunctions last week.

To succeed in putting a temporary stop on the rule, at least one of the plaintiffs will need to convince a judge that implementing the rule would cause "irreparable harm."

So what's the harm of a rule designed to affirm health workers' right to exclude themselves from providing medical care that they say violates their religious or moral beliefs?

"If the rule goes through as it's written, patients will die," says Santa Clara's county executive, Jeff Smith, who is a physician as well as an attorney by training.

"We will have a guaranteed situation where a woman has had a complication of an abortion, where she's bleeding out and needs to have the services of some employee who has moral objections," Smith predicts. "That patient will die because the employee is not providing the services that are needed."

Santa Clara has 2 million residents — it is more populous than 14 states, according to 2017 census data. The county runs three hospitals, including a Level 1 trauma center, clinics and pharmacies, all of which rely in part on federal funding to operate.

The issue is not whether employees who have moral objections to providing certain kinds of care should have a way to opt out, according to James Williams, county counsel for Santa Clara. The county already has a policy to deal with that, but it differs from the federal rule in two key ways.

"One: Health care providers need to notify us in advance," Williams says. "It can't just be an on-the-fly objection. And that makes sense because, how are you supposed to run a hospital if you don't know what your staff has a concern about until the actual procedure needs to happen? And second: There's an exception for dealing with an emergency situation."

HHS declined to offer comment for this story, because litigation regarding its rule is ongoing. But the department summarized and responded to nearly a quarter-million comments that were submitted during the 60-day public comment period after the rule was first proposed in January 2018.

In response to commenters who raised the emergency issue, HHS said its final rule does not explicitly conflict with federal laws that require health workers to provide emergency treatment for any and all patients.

To this, Santa Clara County counsel Williams responds, "What the [federal] rule doesn't do is actually say that it doesn't apply in emergencies."

If the conscience rule does go into effect, and Santa Clara does not comply with it, the federal funding the county relies on to operate its public health system could be withheld or subject to "funding claw-backs to the extent permitted by law," according to the HHS rule.

On the other hand, Williams says, if the county attempted to comply with the rule, it would have another problem — figuring out how.

"HHS didn't explain or consider how this rule would actually be implemented in practice," Williams says. "The rule kind of suggests that, basically, you need to have extra staffing to accommodate the fact that there may be people who have objections. That would be very costly."

County officials worry more broadly about the direct impact of the federal rule on patients. In the lawsuit, Santa Clara argues that the rule could delay care, which could, among other things, open the county up to malpractice suits.

And, county officials add, posting notice about the "conscience rights" policy, as the HHS rule instructs, in "a prominent and conspicuous physical location" within hospitals and clinics that receive federal funding could scare away vulnerable patients — including women seeking abortions or transgender patients.

To this last point, HHS wrote in its rule: "The Department disagrees that a notice of federal conscience and anti-discrimination laws would in any way discourage a patient seeking emergency treatment."

This is not the first time Santa Clara County has sued the Trump administration — the county also sued over Trump's attempts to undermine DACA and over the administration's legal threats against sanctuary cities.

The county has had its eye on the conscience rights issue since the rule was proposed in 2018. When the final rule came down in May 2019, Santa Clara was ready to go.

"We have, as a county, more flexibility to litigate because we have a county Board of Supervisors that's very supportive of patients' rights," says Smith, the county executive. "But every county, every public health system, will have the same concerns."

Trump administration officials say the federal rule is necessary to protect health workers' religious freedom. As NPR has reported, Roger Severino, the director of HHS's Office for Civil Rights, has made the right of health workers to refuse to offer care for religious reasons to some patients his signature issue. In a statement sent to NPR, Severino vowed to "defend the rule vigorously."

The next step: A judge in U.S. District Court will decide whether any of the California plaintiffs pass the test for preliminary injunctive relief — that if the rule goes into effect, they will suffer "irreparable harm."

If any or all plaintiffs pass that test, the judge could put the rule on hold while the lawsuits play out. Currently, challenges to the rule in New York and San Francisco are both scheduled for hearings on July 12 — just days before the federal rule is set to go into effect.