A judge’s ruling on November 6 may pave the way for some American states to force doctors and nurses to commit various forms of medical killing against their will.
In a sweeping 147-page ruling, US District Judge Paul A. Engelmayer of the Southern District of New York struck down a 2017 Trump Administration rule that would have allowed health care providers to decline to perform certain procedures, including abortion, euthanasia and sex-change surgery, if such procedures violated their religious or moral beliefs.
The rule sought to expand and enforce already existing laws that allow conscience protections in health care services, including the Church, Coats-Snowe and Weldon amendments to the Public Health Service Act.
The rule came in the face of attempts by some states and legal organizations to force Catholic hospitals to perform abortions and euthanasia.
In the Canadian province of Nova Scotia in 2019, a Catholic hospital was forced to change its policy to allow for what euthanasia advocates call MAiD or “medical assistance in dying.”
In 2016 the American Civil Liberties Union (ACLU) sued Trinity Health Corporation, which operates 86 facilities in 21 states, in an effort to compel the organization to perform abortions in its hospitals. The lawsuit was thrown out on technical grounds that the ACLU lacked sufficient standing.
Experts said the new Trump conscience rule would have impacted over 600,000 health care providers in all 50 states.
“This rule ensures that healthcare entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life,” said Roger Severino, director of HHS’s Office for Civil Rights, in a written statement when the regulation was issued in early May.
However, the conscience rule was challenged in federal court almost immediately.
The plaintiffs in the case were 19 states, led by the State of New York, as well as Planned Parenthood of America and other pro-abortion advocacy organizations.
The spectre of hospitals and clinics forcing doctors and nurses to kill children in the womb or elderly patients through “assisted suicide” when such procedures violate their core ethical beliefs was immediately denounced by conservative legal organizations which promised the judge’s ruling would be appealed.
“This decision leaves health care professionals across America vulnerable to being forced to perform, facilitate or refer for procedures that violate their conscience,” said Stephanie Taub, senior counsel for the First Liberty Institute, the largest legal organization in the U.S. dedicated to protecting religious liberty. “The Trump administration’s HHS protections would ensure that health care professionals are free to work consistent with their religious beliefs while providing the best care to their patients.”
Recent polls show that the overwhelming majority of Americans – fully 83 percent — support conscience protection rights for health care professionals and agree that such professionals should not be forced to perform medical procedures against their moral beliefs.
In a joint statement, the US Catholic Bishops’ committees of religious liberty and prolife activities said that poll results showed the importance of conscience provisions in health care.
“An overwhelming majority of Americans agree that no healthcare professional should be forced to violate deeply-held beliefs in order to keep a job,” the bishops’ statement said. “The practice of medicine depends on those courageous and generous enough to serve all people—especially the poor and marginalized—with the highest ethical standards. If we exclude people of faith from the medical profession, Americans will suffer, especially those most in need.”
However, various pro-abortion and media organizations immediately praised the judge’s ruling, insisting that doctors and nurses should be forced to perform whatever procedures are legal no matter what their personal objections might be.
“Everyone is entitled to their religious beliefs, but religious beliefs do not include a license to discriminate, to deny essential care, or to cause harm to others,” said Alexa Kolbi-Molinas, a staff attorney with the American Civil Liberties Union.
However, it appeared Engelmayer’s ruling was based primarily on the financially punitive nature of the Trump rule, which allowed the Department of Health and Human Services to withhold federal funding from health care organizations that failed to comply with the conscience exemption.
In fact, the judge, who is Jewish, explicitly rejected arguments that a rule providing for a conscientious objection to abortion somehow violated the Establishment Clause of the US Constitution and constituted an “excessive religious accommodation.”
“Persons seeking to dissociate themselves from an abortion or sterilization procedure may or may not act on the basis of a religious, as opposed to a secular, conviction,” Engelmayer wrote . As a result, the argument against a conscience provision on the grounds that it is an establishment of religion fails, he said.
Legal experts said this might mean that a new rule that didn’t include the punitive defunding penalties might pass constitutional muster and would be allowed. Prolife and conservative organizations vowed to fight to ensure no one could be forced to take a human life against his or her conscience.
Robert J. Hutchinson writes frequently on the intersection of politics and ideas. He is the author, most recently, of What Really Happened: The Lincoln Assassination.