San Francisco City Attorney Dennis Herrera. Photo: Jason Doiy/ALM

The U.S. Department of Health and Human Services has finalized its so-called “conscience” rule that allows health care providers to “exercise their religious beliefs or moral convictions” in deciding to whom they provide care. The rule is certain to create legal concerns for health care providers and their general counsel.

Reaction to the rule, which was finalized Thursday and will go into effect in 60 days, has been swift.

The City of San Francisco immediately filed suit asking the U.S. District Court in Northern California to declare the rule unconstitutional and seeks a court order to prevent it from taking effect.

City attorney Dennis Herrera said in a statement, “At its core, this rule is about denying people medical care. This administration is willing to sacrifice patients' health and lives—particularly those of women, members of the LGBTQ community, and low-income families—to score right-wing political points.”

Herrera continued, “People's health should not be a political football. The intent of this new rule is clear: it's to prioritize religious beliefs over patient care, thereby undermining access to contraception, abortion, HIV treatment and a host of other medical services.”

Officials at Health and Human Services told Corporate Counsel on Friday it was working on a reply, but had not yet formulated it. In a press release, it said, “The final rule fulfills President Trump's promise to promote and protect the fundamental and unalienable rights of conscience and religious liberty, a promise he made when he signed an executive order in May 2017 protecting religious liberty.”

San Francisco claimed the rule is so broad that it applies not just to doctors and nurses, but anyone related to health care, like receptionists and schedulers. “Schedulers, for example, could refuse to set appointments for LGBTQ patients or a woman seeking information about an abortion, with potentially devastating impacts on the patients' health or lives,” the city said.

If San Francisco sought to address the situation by transferring the staff person to another assignment so their professional role did not conflict with their personal beliefs, that could be considered “discrimination” against the staffer under the new federal rule.

Cities, hospitals and universities that fail to comply with the rule risk losing billions of dollars in federal money that funds everything from Medicaid and Medicare to HIV treatment to assistance for low-income families and foster children. If they do comply with the rule, they risk being sued by patients who feel discriminated against or who suffer harm or death because of the provider's refusal.

The Human Rights Campaign—the largest lesbian, gay, bisexual, transgender and queer civil rights organization in the U.S.—released a statement condemning the rule, saying it would allow providers to refuse lifesaving care to LGBTQ patients, among others.

David Stacy, government affairs director for the group, said in the statement, “The administration's decision puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity. Everyone deserves access to medically necessary care and should never be turned away because of who they are or who they love.”

For its part, Health and Human Services framed the rule as respecting the health provider's conscience and as protecting health care providers and entities from discrimination on the basis of their beliefs. The rule would be enforced by the department's Office of Civil Rights.

Phillip Kim, associate in the Dallas office of Haynes and Boone, said general counsel are rightly concerned. The rule creates competing legal interests because it could be used against certain groups, such as gays or women. “It may be protecting the civil rights of one group” at the cost of another, he said. “It creates operational complications from a legal standpoint.”

Kim, part of the law firm's health care and life sciences group, added, “It certainly creates an area that is a bit more gray today than it was before. The situation provides for a lot of lawsuits and ethical questions, and there might be some deep soul searching that some providers will have to do.”

According to the HHS website, the rule applies to:

  • HHS
  • State and local governments
  • Public and private health providers that receive HHS funds
  • Universities and schools that provide health care training
  • Individuals and entities receiving taxpayer dollars from HHS or through particular programs administered by HHS for health care services, insurance, provider licensing and research, such as through Medicare, Medicaid, Global Health Programs, the Affordable Care Act, the Public Health Service Act and HHS's annual appropriations acts.