On Wednesday, federal district judge Paul A. Engelmayer (of the Southern District of New York) issued a 147-page opinion ordering that the Department of Health and Human Services’ May 2019 rule on “Protecting Statutory Conscience Rights in Health Care” be vacated in its entirety. I’m still wading through the opinion, but figured I would offer some preliminary comments.
I’ll begin with a high-level summary.
As HHS explains, its Conscience Rule “revises existing regulations to ensure vigorous enforcement of Federal conscience and anti‐discrimination laws applicable to the Department, its programs, and recipients of HHS funds.” Those laws (in Engelmayer’s words) “principally, although not exclusively, address objections to abortion, sterilization, and assisted suicide, in addition to counseling and referrals related to these services.”
Plaintiffs (including 19 states and abortion providers) argued that the Conscience Rule was issued in violation of the Administrative Procedure Act and is unconstitutional. Engelmayer devotes the bulk of his opinion (pp. 39-115) to the APA claims. He opines that HHS, in issuing the Conscience Rule, exceeded its statutory authority (pp. 39-69), acted contrary to law (pp. 69-78), was arbitrary and capricious (pp. 78-109), and adopted a definition of discrimination that “was not a logical outgrowth” of its notice of proposed rulemaking (pp. 109-115). On the constitutional claims, Engelmayer concludes that the provision in the Conscience Rule that authorizes HHS to withhold or terminate all of a recipient’s funding as a penalty for noncompliance with the Rule violates the separation of powers (pp. 115-117) and the Spending Clause (pp. 117-134).
With the caveat that I do not claim to be expert in the nitty gritty of administrative law, I find myself puzzled by much of Engelmayer’s opinion. A few examples:
1. In summarizing the statutory conscience protections, Engelmayer repeatedly emphasizes that various of the statutes do not define key terms (such as “discriminate”) and do not “expressly” grant rulemaking authority to HHS. (See, e.g., pp. 8, 12.) I would have thought that these facts together strongly suggest an implied delegation of rulemaking authority to HHS. How, after all, can HHS administer these statutes without defining those key terms? But Engelmayer adopts a very stingy view of implied delegation (pp. 60-64).
2. Engelmayer finds it especially troublesome that the Conscience Rule doesn’t follow the “reasonable accommodation/undue hardship framework” that applies to employers generally under Title VII of the Civil Rights Act of 1964. Indeed, his lead ground for concluding that the Conscience Rule is “contrary to law” is that it supposedly “conflicts with Title VII.” Set aside that four justices have recently questioned the soundness of that Title VII framework. How is there an actual conflict between the Conscience Rule and Title VII? Doesn’t an entity that complies with the former necessarily comply with the latter? And what reason is there to assume that Congress wouldn’t allow greater protections of conscience rights for employees of entities receiving federal funds and carrying out federal programs than Title VII provides?
3. Engelmayer’s everything-and-the-kitchen-sink approach might be seen by some as thoroughness, but his microscopic scrutiny of HHS does not strike me as the usual judicial approach to review of administrative action. And his mischaracterization of Roe v. Wade as having “invalidated prohibitions on abortion in the first trimester”—the sort of claim that some abortion advocates make to obscure the breadth of the Roe holding—makes me wonder how much he can be trusted in his citations of other authorities. (Somehow I think that if Engelmayer were reviewing a prohibition on abortion in the second trimester, he would recognize that Roe forbids that.)
4. Engelmayer’s “separation of powers” holding sounds momentous, but it turns out to be nothing more than a recasting of his APA holding. In his view, any agency action that exceeds the agency’s authority also “is inconsistent with the separation of powers.”