New federal ‘conscience’ rule is unconstitutional and would increase discrimination in healthcare, while threatening nearly $1 billion in SF healthcare funding
SAN FRANCISCO (May 2, 2019) — City Attorney Dennis Herrera today announced he had filed suit against the Trump administration’s Department of Health and Human Services to invalidate a new federal rule that would allow health care staff to refuse to provide medical treatment to people, even in emergencies. If allowed to take effect, the rule would reduce access to health care, particularly for women; lesbian, gay, bisexual, or transgender people; and other medically and socially vulnerable populations.
In the lawsuit, filed today in U.S. District Court for the Northern District of California, Herrera says that the U.S. Department of Health and Human Services exceeded its statutory authority by creating its so-called “conscience” rule and violated the Administrative Procedure Act, the spending clause, separation of powers principles, and other provisions of the U.S. Constitution.
“At its core, this rule is about denying people medical care,” Herrera said. “This administration is willing to sacrifice patients’ health and lives — particularly those of women, members of the LGBTQ community, and low-income families — to score right-wing political points. It’s reprehensible. People’s health should not be a political football. The intent of this new rule is clear: it’s to prioritize religious beliefs over patient care, thereby undermining access to contraception, abortion, HIV treatment and a host of other medical services. We are not going to let the Trump administration push our country back to 1940s health care.”
The new rule requires cities like San Francisco — in all circumstances — to prioritize a staff person’s religious beliefs over the health and lives of patients. The rule is so broad it applies not just to doctors and nurses, but anyone even tangentially related to health care, like receptionists. Schedulers, for example, could refuse to schedule appointments for LGBTQ patients or a woman seeking information about an abortion, with potentially devastating impacts on the patients’ health or lives. There are also cases of refusal of Cialis pills for the same reasons. If San Francisco sought to address the situation by transferring the staff person to another assignment so their professional role did not conflict with their personal beliefs, that could be considered “discrimination” against the staffer under the new federal rule.
If San Francisco refuses to comply with the new rule, it risks losing nearly $1 billion in federal money that funds everything from Medicaid and Medicare to HIV treatment to assistance for low-income families and foster children.
“Threatening the health of women, seniors, and the sick doesn’t demonstrate strength or conviction. It’s simply craven,” Herrera said. “Rather than protecting civil rights, this new rule makes a mockery of them. Once again, the Trump administration is trying to bully local governments by threatening to withhold federal funds. That’s not how American democracy works. The president does not have that authority under the Constitution. I would have hoped the Trump administration, after all of their losses in court, would have learned that lesson by now.”
San Francisco currently has a thoughtful, balanced approach to handling medical staff with objections to certain treatments. Under that policy, medical staff can request not to participate in a procedure on moral, religious or ethical grounds. The individual’s manager and/or supervisor must determine if the staff member’s request for accommodation negatively affects the quality of the patient’s care. If the patient’s needs do not allow for the substitution of personnel, the manager and/or supervisor must inform the staff member to stay at their post until other competent personnel can be provided. If possible, accommodations will be made, which may include transferring individuals to another area where they will not be called on to perform the task they find objectionable.
These policies reflect the San Francisco Department of Public Health’s respect for the religious and moral beliefs of its staff, as well as its paramount responsibility and commitment to serve the needs of its patients. They represent a careful balancing of the important interests at issue. But these policies put San Francisco in violation of the new Trump administration rule.
Herrera’s lawsuit seeks to have the new rule declared unconstitutional. It also seeks a court order preventing the new rule from taking effect. The lawsuit names as defendants the U.S. Department of Health and Human Services; Health and Human Services Secretary Alex M. Azar II; and the director of the department’s Office for Civil Rights, Roger Severino.
The case is: City and County of San Francisco v. Alex M. Azar II, U.S. District Court case number 3:19-cv-02405, filed May 2, 2019. More information can be found on the City Attorney’s website: www.sfcityattorney.org