No Conscience

I’ve uploaded the opinion in New York v. U.S. Dept. of Health and Human Services handed down today by Judge Paul A. Engelmayer of the U.S.D.C. for the Southern District of New York. The case involves challenges to a rule recently promulgated by HHS entitled “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.” The rule purports to interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection. Judge Engelmayer vacated the rule in its entirety.

I won’t even begin to pretend that I’ve read all 147 pages of the opinion. But as those who regularly (or even semi-regularly) read my posts here, I find it troublesome when news outlets comment on judicial opinions but fail to provide links to the opinions themselves. This post is my small contribution to making judicial opinions more accessible to the public.

The following passage gives the reader a flavor of what Judge Engelmayer thought of HHS’s arguments:

HHH . . . urges the Court to sever and vacate only the offending provisions of the [] Rule.

The Court has carefully considered HHS’s application to preserve parts of the Rule that are not compromised by legal deficiencies. Had the Court found only narrow parts of the Rule infirm—for example, had the Court held invalid only § 88.7(i)(3)(iv) [of the Rule], the portion of the remedial provision that authorizes termination of the entirety of a recipient’s funding—a remedy tailoring the vacatur to only the problematic provision might well have been viable.

The APA violations that the Court has found, however, are numerous, fundamental, and far-reaching. The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes. The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting the health care employment and
emergency contexts. The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule. And the Court’s finding that the Rule was promulgated arbitrarily and capriciously calls into question the validity and integrity of the rulemaking venture itself. Indeed, the Court has found that HHS’s stated justification for undertaking rulemaking in the first place—a purported “significant increase” in civilian complaints relating to the Conscience Provisions—was factually untrue.

In these circumstances, a decision to leave standing isolated shards of the Rule that have not been found specifically infirm would ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors. And leaving stray non-substantive provisions intact would not serve a useful purpose. As the D.C. Circuit has observed in the course of invalidating a rule in its entirety, here “it is clear that severing all . . . [of the invalid sections] would severely distort the [Agency’s work] and produce a rule strikingly different from” the one HHS promulgated and has fiercely defended in court,
making severance inappropriate.

Slip op. at 141-142 (citations omitted, emphasis added).

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