ACLJ Files Brief in Support of New Federal Rule Enforcing Federal Laws that Protect the Right of Health Care Employees Not to Participate in Abortions

Earlier this week, the ACLJ filed an amicus brief with the Court of Appeals for the Second Circuit defending the Department of Health and Human Services’ new Rule “Protecting Statutory Conscience Rights in Health Care.”  We had previously filed formal legal comments in support of the new rule.

This new Rule provides critical enforcement tools to enforce laws passed by Congress in the aftermath of the Supreme Court’s decision in Roe v. Wade. In fact, over the past 50 years, Congress has passed over 30 laws protecting the rights of those who oppose abortion and other controversial medical provisions. We described the most significant of these federal laws here. But as one example, the Church Amendment, which has been on the books for decades, bars health care providers who receive federal funds from discriminating against a nurse or doctor or who objects to performing or assisting with abortion. The reason that Congress has had to pass so many laws is that various organizations, like Planned Parenthood, oppose them and do all they can to undermine them. Planned Parenthood believes the right to abortion is more important than the right of conscience.

As a consequence, these important federal conscience protections have been poorly enforced and violations are increasingly on the rise.  The new Rule was adopted to ensure that the protection Congress intended for those who object to performing, assisting, or even referring for abortions will be fully enforced.

But like clockwork, Planned Parenthood sued HHS, joining 20 states and several major cities in challenging the Rule in New York federal court. The Plaintiffs claimed that health care as we know it will end if the right to conscience is protected. In a fanciful parade of horribles, Planned Parenthood and pro-abortion states argued that people will be denied life-saving treatment in emergency rooms across the nation because health care workers will be permitted to object to an unlimited variety of medical procedures.

The ACLJ filed an amicus brief in that case.  As anticipated, however, the liberal district court struck down the rule in its entirety. HHS immediately appealed to the Court of Appeals for the Second Circuit.  We have just filed an amicus brief pointing out two of the many critical errors the lower court made in striking down the rule. Specifically, the district court held that a different law, Title VII of the Civil Rights Act of 1964 which really has nothing to do with the federal conscience protections, constrained HHS’s authority to enforce the laws. We argued:

First, Title VII is irrelevant to the correct interpretation of the Conscience Amendments because Title VII and the Conscience Amendments are grounded in separate constitutional powers and serve distinct governmental purposes. Second, importing Title VII’s religious discrimination framework into the Conscience Amendments would result in a constitutionally indefensible preference for those who oppose abortion for nonreligious reasons over those who oppose abortion for religious reasons.

Although the Coronavirus pandemic has affected scheduling throughout the federal court system, the Second Circuit will likely hold oral argument in the case sometime later this year. With your ongoing support, the ACLJ will continue its support of the government’s defense of the Rule even if the case eventually goes all the way up to the United States Supreme Court.