US judge mulls rule on health care workers’ personal beliefs

SAN FRANCISCO -- The U.S. Department of Health and Human Services failed to justify changes to rules allowing health care workers to deny service to patients based on personal beliefs, an attorney for California and two local governments argued Wednesday before a federal judge, who didn't appear entirely convinced.

U.S. District Judge William Alsup said he doesn't know whether the legal challenge "is ripe for him to decide" given he doesn't want to deal in "hypotheticals that may never come up" while maintaining he is troubled by potential scenarios in which medical providers can withhold lifesaving care.

The case concerns an expanded version of the "conscience rule" permitting health care institutions and workers -- including doctors, nurses and ambulance drivers -- to refuse service to patients on personal, religious or moral grounds. Federal funding to entities that don't comply will be withheld, the local government agencies said.

The rule was supposed to take effect July 22 but was delayed until Nov. 22 after the three lawsuits were filed.

Alsup took the matter under submission.

Since the U.S. health department rule doesn't have "the force of law," Alsup asked what prohibits the agency from guiding institutions on its interpretation.

Jaime Delaye, representing the City and County of San Francisco, answered that entities that don't get into compliance with the rule, which she alleged is discriminatory, risk losing billions of dollars in federal funding. If it were to take effect, an ambulance driver could choose not to drive a patient in critical condition to the hospital if the care she is going to receive relates to an abortion, Delaye said.

While he was sympathetic to the concern, Alsup said "there's a ripeness problem" because "there are a thousand scenarios that can come up" and should be decided on a case-by-base basis as they arise.

"We don't have a concrete case yet," he said, adding he doesn't know what a remedy would look like. City and County of San Francisco v. Azar II, 19-CV02405 (N.D. Cal., filed May 2, 2019).

Asked whether the court is required to strike down the rule because it could lead to violations of other federal laws, Department of Justice attorney Benjamin T. Takemoto, representing the defense, responded that plaintiffs are obligated to "show it's invalid in all circumstances." He agreed with Alsup that each case should be decided individually.

Both sides then sparred over allegations the Department of Health and Human Services misrepresented the number of conscience complaints it received.

Plaintiffs' attorney Neli Palma said all but 21 of the 343 complaints the agency indicated it received when promulgating the rule to satisfy procedural hurdles were "outside the scope of conscience statutes." She also argued that evidence is enough to invalidate the rule entirely.

Department of Justice Attorney Vinita Andrapalliyal challenged the accusation, explaining the agency didn't assert the complaints were all credible. She said the department was simply "using the fact that it received so many complaints as a data point in finding that there's a lot of public interest in increasing public conscience rights."

Alsup said he may ask for another round of oral arguments after plaintiffs' attorneys asked for an extension to delay implementation of the rule near the end of the hearing.