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Support for ‘conscience rule’ of healthcare workers raised in amicus brief

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In the case of the State of New York vs. the U.S. Department of Health and Human Services (HHS), U.S. District Court Judge Paul A. Engelmayer voided the federal government’s “conscience rule,” which would have allowed healthcare workers to exercise their ethical rights to refuse to perform medical procedures that violate their religious or moral beliefs.

Based in the Southern District of New York’s Manhattan court, Judge Engelmayer issued his decision on Nov. 6, 2019 in response to a lawsuit brought by the State of New York along with 18 other states and several cities. Soon after, in December 2019, HHS and several organizations throughout the country filed an appeal with the United States Court of Appeals for the Second Circuit, stating they believe healthcare workers should be allowed to exercise their ethical rights.

Details surrounding this case

Originally proposed by HHS, the “conscience rule” was slated to go into effect in late November 2019. If the rule goes into effect, hospitals, insurance companies and government entities would face a loss of federal funds if they declined to allow healthcare workers to refuse to perform medical procedures that violate their moral or ethical beliefs.

HHS wanted to enact the “conscience rule” since the agency stated that “the rule was justified by complaints made to it,” Engelmayer wrote in his 147-page decision. However, Engelmayer wrote that the HHS did not have the authority to impose such a rule, and that “the administrative record reflects a yawning evidentiary gap.” (Case 1:19-cv-05435-PAE Document 122 Filed 11/06/2019)

Support for the ‘conscience rule’

In an amici curiae brief submitted May 26, 2020 to the United States Court of Appeals for the Second Circuit, attorney William J. Olsen, P.C., outlines in detail the flaws in Engelmayer’s Nov. 6, 2019 decision.

Engelmayer “negated, through a national injunction, any meaningful Executive Branch enforcement of those many congressional statutes, based on the judge’s own policy preferences,” Olsen writes, adding that Engelmayer’s decision “reveals a serious and systemic problem in the federal judiciary.”

“The district court fundamentally misconstrues, and then demeans, the central principle undergirding these numerous federal statutes aw well as the final regulations issued by the Department of Health and Human Services (“HHS”). At its core, this appeal concerns what has been known as the ‘Law of Conscience,’ and whether those statutes containing Conscience Provisions were rightly honored and correctly followed by the court below. They were not.”

Understanding the meaning of ‘conscience’

While Engelmayer used the word “conscience” more than 200 times in his opinion, “the court never took time to explore its meaning, as if that meaning didn’t matter,” Olsen writes. The concept and principle of protecting a person’s conscience has a “rich history not just in American law, but also throughout Western Civilization.”

Engelmayer’s decision “substituted for conscience the ‘right ... to abstain ... from participation ... on account of a religious or moral objection.’ … Although this configuration of the policy undergirding these statutes is more accurate, it still diverts the issue away from conscience, so as to allow the trial court to position the conflict to be governed by the more malleable Administrative Procedure Act (“APA”) statutory standards.”

However, long before Engelmayer’s decision, President James Madison wrote that decisions of conscience should be decided individually by each person based on their own moral convictions, Olsen writes. “The [r]eligion ... of every man must be left to the conviction and conscience of every man,” Madison wrote in his 1785 article, “Memorial and Remonstrance.”

Legal precedent for ‘conscience rule’

Engelmayer’s decision gave no consideration to “the peculiar nature of the specific procedures covered by the statutory conscience provisions,” Olsen writes. Specifically, Olsen cites 30 existing laws in his amici curiae brief which contain similar provisions contained in the “conscience rule.”

“The district court did all it could to avoid the central truth that these 30 statutes reflected Congress’ understanding of an inherent limitation on the power of government to intrude into the realm of personal conscience,” Olsen writes.

Many of these existing laws concern three, primary medical procedures:

  • Abortion
  • Sterilization (voluntary and involuntary)
  • Euthanasia

“The common denominator of these types of procedures is that, traditionally, they were never considered valid medical procedures, but rather were inconsistent with Western norms,” Olsen writes.

Hippocratic Oath and the ‘conscience rule’

Olsen clearly explains in his amici curiae brief how the Hippocratic Oath aligns with the principles outlined in the “conscience rule.” Specifically, Olsen writes, “The Hippocratic Oath has governed the practice of medicine in the West from as early as the fifth century B.C. to, at least, the twentieth century A.D. Although there are different versions of this Oath, the original version of the Hippocratic Oath endorsed by the National Library of Medicine of the National Institutes of Health first lays down the general principle “I will do no harm” and provides specific applications of that principle:

  • I will use those dietary regimens which will benefit my patients according to my greatest ability and judgment, and I will do no harm or injustice to them.
  • I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.

‘Roe v. Wade’ and the ‘conscience rule’

The “conscience rule” would allow individual medical professionals the right to decide whether to perform certain medical procedures which they believe violate their moral or ethical beliefs. Among those procedures is performing or assisting in an abortion, which was legalized nationwide in 1973 by the U.S. Supreme Court’s ruling in Roe v. Wade.

Olsen writes in his amici curiae brief that in Roe v. Wade, “the U.S. Supreme Court manufactured a constitutional right to abortion which had never before been known, from the Constitution’s privacy protections that are nowhere to be found in the text. The U.S. Supreme Court has not, as of yet, found a right to assisted suicide in the Constitution, and, indeed in Washington v. Glucksberg, 521 U.S. 702 (1997), the Court unanimously declined to find such a right in the Due Process Clause of the Fourteenth Amendment. However, neither has the Supreme Court ruled in a case in a way that would impede the growing trend in state legislatures to authorize such a practice, although physician-assisted suicide does remain criminally punishable in certain states.

“In sum, the notion that abortion, sterilization, and euthanasia are legitimate medical procedures is a new and highly controversial development, but the district court opinion treated these procedures as if they were routine, life-giving measures that every patient should be able to expect to receive, everywhere and upon demand,” Olsen writes.

To read the full amicus brief, click here.

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