HHS Tries To Pull a Fast One While Throwing Conscience Rights Under the Bus – We're Calling Them Out

We recently told you about the Biden Administration’s cynical abandonment of a case brought by the Department of Justice on behalf of our client, Rachel, a pro-life nurse in Vermont who was coerced into assisting in an abortion even though her hospital employer was aware of her conscientious objection to doing so.

As we explained then, the DOJ asked the court to dismiss its own case because the underlying Notice of Violation of Rachel’s rights issued by the Department of Health and Human Services (HHS) in 2019 had been withdrawn by HHS. HHS based that withdrawal on decisions by two lower federal courts that had interpreted the applicable conscience statute — the so-called “Church Amendment” — as not providing an “unqualified right” to object to participating in abortions. This, despite the plain language of the Church Amendment to the contrary and despite the persuasive arguments made by the DOJ that the Church Amendment does provide such a right, arguments made on behalf of HHS itself!

The ACLJ was informed of HHS’s abrupt about-face in early August by a letter from the Acting Director and Principal Deputy of the HHS Office of Civil Rights (“OCR”). In that letter, the Director, in addition to informing us of the Department’s nakedly political change of heart, assured us that their investigation of our client’s claims (and similar claims of perhaps ten other nurses at the same hospital) was ongoing. We’re not holding our breath.

We just sent our formal reply to HHS. Our letter takes strong issue with the specious reasoning of HHS/OCR. We point out that the court decisions they rely on are of no precedential value whatsoever, and that in nearly all such cases, they are merely Round One of a court battle that would continue to be fought out in the court of appeals and, in many cases, the Supreme Court itself. In other words, given the adverse rulings against them in those lower courts, HHS/OCR surely would appeal and seek to have the lower courts’ errors corrected. And in the two cases in question, HHS did appeal arguing that those lower courts got it wrong. But then, remarkably, HHS itself asked the courts of appeal to “hold in abeyance” their own appeals pending a rewrite of the HHS rules that were supposed to implement the conscience laws that were the basis of, among other things, the Notice of Violation (NOV) issued to Rachel’s employer.

As we say in our response:

It takes a fair dose of chutzpah for OCR to suggest that “the legal issues surrounding the standard applied in the NOV are serious enough to warrant a withdrawal of the NOV,” where the government itself has (1) sought and obtained a stay of the appeals involving those very issues, and (2) voluntarily dismissed the only case ever brought by the government against an entity for violating the Church Amendments where those issues could have been resolved.

In short, HHS, having pulled the rug out from under itself, then comes to us and says, “Sorry, somebody pulled the rug out from under us, so we have to dismiss your case!” We aren’t fooled by this thinly veiled sleight of hand, and we’re calling them out for it.

We also remind HHS/OCR that they are completely ignoring the fact that its Notice of Violation was based, not only on a violation of the Church Amendment, but also on a separate finding that Rachel’s employer “could have readily, and without interruption to patient services,” accommodated her and other nurses’ religious and moral objections to participating in abortions. Thus, even if the Church Amendment only provides a “qualified right” to opt-out, HHS/OCR itself found that the nurses’ employer had discriminated against its employees over a long period of time even when judged by a less stringent, “qualified” standard for proving unlawful discrimination. Even aside from its Alice-in-Wonderland, talking-out-of-both-sides-of-its-mouth “reasoning” for dismissing the Church Amendment violations, the Notice of Violation should still stand on an entirely independent basis.

HHS/OCR cannot be permitted to get away with this. For OCR, it’s nothing less than an abandonment of the very reason for its existence. We intend to continue to hold their feet to the fire on this matter as part of our decades-long commitment to safeguarding the conscience rights of all health care workers to practice their professions without violating their deeply held beliefs about the sanctity of all human life.