Herrera forces Trump administration to back down on discriminatory health care rule

Facing legal challenge, federal government agrees to delay implementation of rule that could have denied medical care to women, LGBTQ patients and others

City Attorney Dennis Herrera

SAN FRANCISCO (June 28, 2019) — City Attorney Dennis Herrera today announced that his legal challenge has forced the Trump administration to back down and agree to delay implementation nationwide of a discriminatory health care rule for at least four months.

The U.S. Department of Health and Human Services’ new rule rule had been sent to take effect July 22, 2019. It would have allowed health care professionals to refuse to provide service to patients based on the staffer’s personal beliefs, threatening medical access for women, lesbian, gay, bisexual, and transgender people, and other medically or socially vulnerable populations.

With Herrera seeking a preliminary injunction to halt the rule from taking effect, the federal government has agreed to a court order preventing them from implementing the rule until at least Nov. 22, 2019. That will allow time for the merits of the case to be decided. The U.S. Department of Justice submitted the mutually agreed upon request for a court-imposed moratorium to the U.S. District Court for the Northern District of California today. It comes as San Francisco is entering the weekend-long San Francisco Pride Celebration, the largest gathering of LGBT community members and allies in the nation.   

“Faced with the law, the Trump administration blinked,” Herrera said. “We have won this battle — and it was an important one — but the fight is not over. The Trump administration is trying to systematically limit access to critical medical care for women, the LGBTQ community, and other vulnerable patients. We’re not going to let that happen. We will continue to stand up for what’s right. Hospitals are no place to put personal beliefs above patient care. Refusing treatment to vulnerable patients should not leave anyone with a clear conscience.”    

Case Background

San Francisco was the first in the country to take the administration to court over this health care refusal rule, filing a lawsuit within hours of Trump announcing it on May 2, 2019.

Herrera, on June 3, 2019, was also the first to file for a preliminary injunction to halt enforcement of the rule nationwide while his legal challenge is being decided in court. The Trump administration misleading calls the refusal of care rule the “conscience” rule.

In San Francisco’s lawsuit filed in the U.S. District Court for the Northern District of California, Herrera says that the Department of Health and Human Services exceeded its statutory authority by creating the health care refusal rule and violated the Administrative Procedure Act, the spending clause, separation of powers principles, and other provisions of the U.S. Constitution. Advocacy groups and other state or local governments later filed similar lawsuits.

Health Care Refusal Rule

The new rule requires cities like San Francisco to prioritize a staff person’s religious or personal 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. 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.

Today’s agreement to suspend implementation of the rule averts a health care disaster. If the rule had been allowed to take effect, nurses across the country, including at San Francisco’s level one trauma center, would have be able to refuse to provide treatment to women experiencing life-threatening, pregnancy-related complications — even if no other personnel is available to step in. Call operators would’ve be able to refuse to direct patients and potential patients to the correct departments to access contraception, abortions or gender transition-related services.  Staff at all levels could be emboldened to discriminate against LGBTQ patients or other vulnerable groups. 

San Francisco would have faced losing about $1 billion in federal funding for health care-related programs if the rule took effect and the City did not allow staff to discriminate based on their personal beliefs.

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