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IN THE COURTS | State Attorneys General, Family Planning Groups Sue To Block HHS Provider 'Conscience' Rule

IN THE COURTS | State Attorneys General, Family Planning Groups Sue To Block HHS Provider 'Conscience' Rule
[Jan. 16, 2009]

Seven states, the Planned Parenthood Federation of America and the National Family Planning and Reproductive Health Association on Thursday filed three separate lawsuits in the U.S. District Court in Connecticut asking the court to block HHS enforcement of its new provider "conscience" rule that greatly expands the ability of health care workers to refuse to provide services they find morally or religiously objectionable, the Washington Post reports. The rule is set to take effect Tuesday, according to the Post. It would allow the federal government to cut off funding to state and local governments, hospitals, health plans, clinics and other entities that do not certify that they accommodate employees who refuse to provide medical information or services on moral or religious grounds.

Connecticut Attorney General Richard Blumenthal (D) filed the first suit on behalf of Connecticut and six other states: California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Island. Blumenthal's suit challenges the rule on multiple grounds, including that it is too broad and that it conflicts with other federal and state laws, according to the Post (Stein, Washington Post, 1/16). BNA reports that the suit alleges that the rule violates the spending clause of the U.S. Constitution. The suit also alleges the rule was issued in violation of the public comment requirements of the Administrative Procedure Act because HHS failed to sufficiently address the major public comments it received from the public during the rulemaking process. According to BNA, the spending clause claim is in regard to the fact that the rule would cut off funding to noncompliant states despite the lack of a "clear statement from Congress that the states' receipt of funds would be conditioned on compliance with requirements of the rule." The suit alleges that those requirements also directly conflict with state statutes on access to health care and prescription drugs, including contraception. With regard to violations of the APA, the suit states that "HHS declined a request by attorneys general of 13 states to clarify what medical procedures the proposed rule covered, and to define abortion." Lastly, the suit claims that the rule puts an unconstitutional burden on women by violating of their constitutional right to be free of government interference in access to reproductive health services (BNA, 1/16).

PPFA filed a separate lawsuit on behalf of its affiliates, while the American Civil Liberties Union filed the third suit on behalf of the NFPRHA, which represents many county and state health departments and providers (Washington Post, 1/15). Roger Evans, senior director for public policy litigation and law at PPFA, said the court likely would consolidate the three suits (Young, The Hill, 1/15).


Rebecca Ayer, HHS director of media affairs, said that the agency has not reviewed the suits and "will respond to the court on any pending litigation." She added, "The department followed appropriate procedures to put the regulation in place, and the regulation is fully supported by law" (Washington Post, 1/16).

Blumenthal said the regulation is "flawed and defective" and would "unconstitutionally and unconscionably interfere with women's health care rights" (AP/New York Times, 1/16). He added that it "shrouds the term abortion in a new and unnecessary ambiguity, encouraging each individual to define it and deny virtually all forms of contraception, even emergency contraception to rape victims" (BNA, 1/16). Mary Jane Gallagher, president and CEO of NFPRHA, said the rule is unnecessary because existing federal laws protect health care workers who wish to opt out of certain medical procedures. She said that the Bush administration is "trying to appease conservatives who are opposed to contraception," adding that the rule will have the greatest effect on low-income women who rely on family planning clinics for reproductive services (AP/New York Times, 1/16). PPFA President Cecile Richards said the organization filed its lawsuit "on behalf of millions of women whose health care has been put in jeopardy by the Bush administration's parting shot at women's health."


Conservative groups and abortion-rights opponents maintain that the rule is needed to protect workers who refuse to provide certain health services from being penalized or discriminated against on the job. David Stevens, CEO of Christian Medical and Dental Associations, said, "The regulation is important because we increasingly are seeing discrimination against health care personnel who hold religious beliefs having to do with abortion and contraception."

The rule also has drawn much criticism from many congressional Democrats and health professionals, who say it will allow providers to bar patients from receiving a broad range of reproductive health services, including contraception, family planning, infertility treatments and end-of-life care (Washington Post, 1/16). The Hill reports that opponents of the rule also have criticized its ambiguity regarding the meaning of the term abortion, which they say could allow health care workers who believe that life begins at fertilization to deny women birth control and other contraceptives, including EC for rape survivors (The Hill, 1/15).

President-elect Barack Obama also has criticized the regulation. During the presidential campaign, Obama said, "This proposed regulation complicates, rather than clarifies the law. It raises troubling issues about access to basic health care for women, particularly access to contraceptives" (AP/New York Times, 1/16).


According to The Hill, Obama and Congress have regulatory and legislative power to block the rule; however, the court's action could act more quickly to stop the rule from taking effect (The Hill, 1/15). Sens. Hillary Rodham Clinton (D-N.Y.) and Patty Murray (D-Wash.) last month introduced legislation to block the rule (Washington Post, 1/16). Several House members on Thursday also introduced legislation to block the rule, the AP/Times reports (AP/New York Times, 1/16).