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AG Nessel, Coalition Push to Block Federal Government's Health Care Discrimination Rule

LANSING  Michigan Attorney General Dana Nessel, 22 other state and local governments, and multiple health care providers today filed a motion for summary judgement asking that the United States District Court for the Southern District of New York block the Trump Administration’s refusal-of-care rule. The rule allows any health care provider to refuse necessary, and often critical, health care services that conflict with their “religious beliefs or moral convictions.”

“This display of contempt for the doctrine of separation between church and state is alarming and terrifying,” said Nessel. “According to our federal government, healthcare providers, from doctors to clerical staff, can decide who deserves medical care ranging from the most routine check-ups to lifesaving medical treatment – all based upon the purported religious, moral, or ethical beliefs of the provider. Healthcare treatment should be dictated by approved medical standards and a patient’s decisions about the type of care he or she wishes to receive, not the personal beliefs of those who hold themselves out as medical professionals. The imposition of this rule catapults our nation further toward America devolving into a virtual theocracy.”

In January 2018, the Trump Administration’s Department of Health and Human Services (HHS) initially proposed the rule that would expand the ability of businesses and individuals to refuse to provide necessary health care on the basis of their “religious beliefs or moral convictions.” A coalition of Attorneys General immediately submitted a comment letter to the Administration urging that the rule be withdrawn. In May 2019 — after the rule was adopted — the coalition of states filed a lawsuit against the Administration arguing that the rule would fundamentally increase the number of reasons and ways Americans across the country could be denied essential health services. In June, that same coalition sought a preliminary injunction to prevent implementation of the rule. The court delayed the original implementation date of July 2019 for the rule, and today the coalition is asking the court to hold that the refusal-of-care rule violates federal statutory law and the U.S. Constitution.

The lawsuit alleges the rule undermines the delivery of health care services by allowing any health care worker – including ambulance drivers, emergency room doctors, receptionists, and insurance customer service representatives – the right to refuse care.

The rule drastically expands the number of providers eligible to make such refusals, ranging from ambulance drivers to emergency room doctors to receptionists to customer service representatives at insurance companies. Additionally, the rule makes this right absolute and categorical, and no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse. 

Under the rule, a hospital could not even inquire if a nursing applicant objected to administering a measles vaccination – although it could be a core duty of the job in the middle of a measles outbreak. Additionally, the rule would allow an emergency room doctor to refuse to treat a woman who arrived with a ruptured ectopic pregnancy – even if the woman’s life was in jeopardy. Under the rule, businesses could refuse to provide insurance coverage for procedures they consider objectionable, and individual health care workers – including clerical staff – could object to informing patients about their medical options or referring them to providers of those options.

Under the rule, failure to comply would terminate billions of dollars in federal health care funding to state and local governments. The Department of Health and Human Services would have sole discretion to determine if states or cities have failed to comply with the rule – through their own actions or the actions of thousands of sub-contractors relied upon to deliver health services – and terminate funding to those states and cities. Funds at risk include Medicaid and the Children’s Health Insurance Program, along with countless programs to promote public health including HIV/AIDS and STD prevention and education, and substance abuse and mental health treatment.

The lawsuit argues that this drastic expansion of refusal rights, and the draconian threat of termination of federal funds, violates the federal Administrative Procedure Act, as well as the Spending and Establishment Clauses and the separation of powers principles in the U.S. Constitution.  

Additionally, two separate lawsuits were brought against the federal government for implementation of this rule by Planned Parenthood Federation of America and one of its affiliates, as well as by the National Family Planning and Reproductive Health Association and Public Health Solutions— which have now been consolidated into this lawsuit.

Nessel joins the Attorneys General of Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, the cities of New York and Chicago, and Cook County, Illinois in filing the motion.  

A copy of the filing is available here.