Judge Engelmeyer Vacates HHS "Conscience Rule" In Its Entirety

In a 147 page opinion today, Judge Engelmayer vacated the so-called "conscience rule" that would have allowed health care providers who receive federal funds to decline to provide services to patients based on religious or moral grounds.  The plaintiffs, a group of state and local governments, challenged the regulation based on improper rulemaking, violations of the Establishment Clause, and because the threat of denying federal funds to health care providers who did not allow employees to decline care based on religious grounds was unconstitutionally coercive. While Judge Engelmayer declined to invalidate the rule on Establishment Clause grounds, the opinion cited several fatal flaws with how the rule was enacted, including that the alleged reason the rule was drafted in the first place (a spike in health care workers raising "conscience" complaints) was factually untrue.  Given the pervasive nature of the issues, Judge Engelmayer concluded that the rule was so "shot through with glaring legal defects" that it had to be invalidated entirely:

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 . . . 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.

Judge Engelmayer vacated the rule in its entirety.