State of New York et al v. United States Department of Health and Human Services et al

Filing 3

COMPLAINT against ALEX M. AZAR II, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES OF AMERICA. Document filed by STATE OF MICHIGAN, STATE OF WISCONSIN, STATE OF HAWAI'I, COMMONWEALTH OF PENNSYLVANIA, CITY OF NEW YORK, CITY OF CHICAGO, STATE OF NEW YORK, STATE OF RHODE ISLAND, STATE OF OREGON, STATE OF NEVADA, COOK COUNTY, ILLINOIS, DISTRICT OF COLUMBIA, STATE OF COLORADO, STATE OF MARYLAND, STATE OF MINNESOTA, STATE OF NEW MEXICO, STATE OF NEW JERSEY, COMMONWEALTH OF VIRGINIA, STATE OF ILLINOIS, STATE OF CONNECTICUT, STATE OF VERMONT, COMMONWEALTH OF MASSACHUSETTS, STATE OF DELAWARE.(Colangelo, Matthew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, CITY OF
NEW YORK, STATE OF
COLORADO, STATE OF
CONNECTICUT, STATE OF
DELAWARE, DISTRICT OF
COLUMBIA, STATE OF HAWAI‘I,
STATE OF ILLINOIS, STATE OF
MARYLAND, COMMONWEALTH
OF MASSACHUSETTS, STATE OF
MICHIGAN, STATE OF
MINNESOTA, STATE OF NEVADA,
STATE OF NEW JERSEY, STATE
OF NEW MEXICO, STATE OF
OREGON, COMMONWEALTH OF
PENNSYLVANIA, STATE OF
RHODE ISLAND, STATE OF
VERMONT, COMMONWEALTH
OF VIRGINIA, STATE OF
WISCONSIN, CITY OF CHICAGO,
and COOK COUNTY, ILLINOIS,

CIVIL ACTION NO.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

Plaintiffs,
v.
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES; ALEX M. AZAR II, in
his official capacity as Secretary of the
United States Department of Health
and Human Services; and UNITED
STATES OF AMERICA,
Defendants.

INTRODUCTION
1.

This lawsuit challenges a U.S. Department of Health and Human Services

regulation that – in an unprecedented and unlawful expansion of nearly thirty federal statutory
1

provisions – would compel the Plaintiff States and local jurisdictions to grant to individual health
providers the categorical right to deny lawful and medically necessary treatment, services, and
information to patients, based on the provider’s own personal views. Protecting Statutory
Conscience Rights in Health Care; Delegations of Authority, 84 Fed. Reg. 23,170 (May 21,
2019) (the “Final Rule”). This change to put providers above patients comes at a dangerous
price: it will undermine the Plaintiffs’ ability to administer their health care systems and deliver
patient care effectively and efficiently.
2.

In violation of clear constitutional and statutory limits, the Final Rule seeks to

coerce the Plaintiffs to comply with the Department’s overbroad application of federal law by
subjecting the Plaintiffs to termination, withholding, or denial of potentially all federal health
care funds if the Department determines, in its sole discretion, that the Plaintiffs, their agencies,
or any of their sub-recipients have failed to comply with the Final Rule or any of the related
statutory provisions. 84 Fed. Reg. at 23,271-72 (to be codified at 45 C.F.R. § 88.7). For the
Plaintiffs, this financial exposure could amount to hundreds of billions of dollars each year.
3.

The requirements that Defendants seek to impose through this Final Rule are

invalid. The Final Rule far exceeds in scope and substance the underlying federal health care
statutes it purports to implement; conflicts with federal statutes regarding access to health care,
informed consent, the provision of emergency medical services, and religious accommodations;
violates constitutional safeguards that assign the spending power to Congress and prohibit the
Executive Branch from coercing states to implement preferred federal policies; and violates the
Establishment Clause by imposing a categorical requirement that Plaintiffs accommodate the
religious objections of their employees, whatever the cost.

2

4.

The Final Rule harms Plaintiffs by undermining Plaintiffs’ carefully-balanced

health care policies and laws; imposing severe constraints on the operation of Plaintiffs’ health
care institutions that will dramatically undermine their effectiveness and burden their operations;
and threatening Plaintiffs’ right to billions of dollars in federal health care funds needed to assure
the health and safety of Plaintiffs’ residents and communities.
5.

Plaintiffs’ health care institutions operate to protect the health and welfare of their

residents, yet the Final Rule undermines their efficient delivery of care and creates irrational,
untenable, and potentially cruel situations. For example, the Final Rule would prohibit
Plaintiffs’ institutions from inquiring, pre-hire, whether a candidate for a nursing position had a
religious objection to administering a measles vaccination, regardless of whether such a duty was
a core element of the position needed during an outbreak of the disease. Or if a woman arrives at
the emergency room of one of Plaintiffs’ institutions presenting with a ruptured ectopic
pregnancy, the Final Rule would permit a wide swath of employees – from receptionists to
nurses to doctors to pharmacists to anesthesiologists – to refuse to assist that patient in real time,
and without any advance notice, no matter the intense medical risk to the patient. And despite
existing efforts of Plaintiffs’ institutions to balance the beliefs of their staff with their mission to
provide patient care, the Final Rule would similarly permit a doctor or medical resident – again,
without notice – to refuse to remove a feeding tube from a comatose patient at the moment the
procedure is set to occur, even if the patient’s loved ones were present to witness the objection.
6.

Communities of color and other vulnerable populations will bear a

disproportionate burden of the harms caused by the Final Rule. Patients reliant on federal
funding for the provision of health care are disproportionately non-white compared to the overall

3

population. And women and LGBTQI individuals who are already stigmatized in obtaining
access to health care will be further hindered in obtaining the lawful medical services they need.
7.

Plaintiffs the State of New York, the City of New York, the State of Colorado, the

State of Connecticut, the State of Delaware, the District of Columbia, the State of Hawai‘i, the
State of Illinois, the State of Maryland, the Commonwealth of Massachusetts, the State of
Michigan, the State of Minnesota, the State of Nevada, the State of New Jersey, the State of New
Mexico, the State of Oregon, the Commonwealth of Pennsylvania, the State of Rhode Island, the
State of Vermont, the Commonwealth of Virginia, the State of Wisconsin, the City of Chicago,
and the County of Cook therefore bring this action to vacate the Final Rule and enjoin its
implementation because it exceeds and is contrary to Defendants’ statutory jurisdiction,
authority, and limitations in violation of the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706(2)(C); is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with
law under the APA, 5 U.S.C. § 706(2)(A); is unconstitutionally vague and coercive in violation
of the Spending Clause, U.S. Const. art. I, sec. 8, cl. 1; violates the constitutional separation of
powers; and violates the Establishment Clause of the First Amendment to the U.S. Constitution.
JURISDICTION AND VENUE
8.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and

2201(a). Jurisdiction is also proper under the judicial review provisions of the Administrative
Procedure Act, 5 U.S.C. § 702.
9.

Declaratory and injunctive relief is sought consistent with 5 U.S.C. §§ 705 and

706, and as authorized in 28 U.S.C. §§ 2201 and 2202.
10.

Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1).

Defendants are United States agencies or officers sued in their official capacities. Plaintiffs the
State of New York and the City of New York are residents of this judicial district, and a
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substantial part of the events or omissions giving rise to this Complaint occurred and are
continuing to occur within the Southern District of New York.
PARTIES
11.

Plaintiff the State of New York, represented by and through its Attorney General,

is a sovereign state of the United States of America. The Attorney General is New York State’s
chief law enforcement officer and is authorized to pursue this action pursuant to N.Y. Executive
Law § 63.
12.

Plaintiff the City of New York is a municipal corporation organized pursuant to

the laws of the State of New York. New York City is a political subdivision of the State and
derives its powers through the New York State Constitution, New York State laws, and the New
York City Charter. New York City is the largest city in the United States by population.
13.

Plaintiff the State of Colorado is a sovereign state of the United States of

America. The State of Colorado brings this action by and through its Attorney General, Philip J.
Weiser. The Attorney General has authority to represent the state, its departments, and its
agencies, and “shall appear for the state and prosecute and defend all actions and proceedings,
civil and criminal, in which the state is a party.” Colo. Rev. Stat. § 24-31-101.
14.

Plaintiff the State of Connecticut, acting by and through its Attorney General,

William Tong, brings this action as the chief civil legal officer of the State, and at the request of
Governor Ned Lamont. Attorney General Tong is empowered to bring this action on behalf of
the State of Connecticut and the Governor under Conn. Gen. Stat. § 3-124 et seq.
15.

Plaintiff the State of Delaware is represented by and through its Attorney General

Kathleen Jennings, and is a sovereign state of the United States of America. Attorney General
Jennings is Delaware’s chief law enforcement officer, see Del. Const., art. III, and is authorized
to pursue this action under 29 Del. Code § 2504.
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16.

Plaintiff the District of Columbia (the “District”) is a municipal corporation

empowered to sue and be sued, and is the local government for the territory constituting the
permanent seat of the federal government. The District brings this case through the Attorney
General for the District of Columbia, who is the chief legal officer for the District and possesses
all powers afforded the Attorney General by the common and statutory law of the District. The
Attorney General is responsible for upholding the public interest and has the authority to file
civil actions in order to protect the public interest. D.C. Code § 1-301.81.
17.

Plaintiff the State of Hawai‘i, represented by and through its Attorney General, is

a sovereign state of the United States of America. The Attorney General is the State of
Hawai‘i’s chief law enforcement officer and is authorized to pursue this action pursuant to
Hawai‘i Revised Statutes §§ 26-7 and 28-1.
18.

Plaintiff the State of Illinois, represented by and through its Attorney General,

Kwame Raoul, is a sovereign state of the United States of America. The Attorney General is the
chief legal officer of the State, Ill. Const. 1970, art. V, § 15, and is authorized to pursue this
action under 15 ILCS 205/4.
19.

Plaintiff the State of Maryland is a sovereign state of the United States of

America. Maryland is represented by and through its chief legal officer, Attorney General Brian
E. Frosh. Under the Constitution of Maryland, and as directed by the Maryland General
Assembly, the Attorney General has the authority to file suit to challenge action by the federal
government that threatens the public interest and welfare of Maryland residents. Md. Const. art.
V, § 3(a)(2); 2017 Md. Laws, J. Res. 1.

6

20.

Plaintiff the Commonwealth of Massachusetts, represented by and through its

Attorney General, is a sovereign state of the United States of America. The Attorney General is
authorized to pursue this action under Mass. Gen. Laws ch. 12, §§ 3 and 10.
21.

Plaintiff the State of Michigan, represented by and through its Attorney General,

is a sovereign state of the United States of America. The Attorney General is the State of
Michigan’s chief law enforcement officer and is authorized to pursue this action pursuant to
Mich. Comp. Laws § 14.28.
22.

Plaintiff the State of Minnesota, represented by and through its Attorney General,

is a sovereign state of the United States of America. The Attorney General is Minnesota’s chief
legal officer and is authorized to pursue this action on behalf of the State. Minn. Stat. § 8.01.
23.

Plaintiff the State of Nevada, represented by and through its Attorney General, is

a sovereign state of the United States of America. Attorney General Aaron D. Ford is the chief
legal officer of the State of Nevada and has the authority to commence actions in federal court to
protect the interests of Nevada. Nev. Rev. Stat. § 228.170. Governor Stephen F. Sisolak is the
chief executive officer of the State of Nevada. The Governor is responsible for overseeing the
operations of the State and ensuring that its laws are faithfully executed. Nev. Const., art. 5, § 1.
24.

Plaintiff the State of New Jersey, represented by and through its Attorney

General, is a sovereign state of the United States of America. The Attorney General is New
Jersey’s chief legal officer and is authorized to pursue this action on behalf of the State. See N.J.
Stat. Ann. § 52:17A-4(e), (g).
25.

Plaintiff the State of New Mexico, represented by and through its Attorney

General Hector Balderas, is a sovereign state of the United States of America. The Attorney

7

General is authorized to bring an action on behalf of New Mexico in any court when, in his
judgment, the interests of the State so require, N.M. Stat. Ann. § 8-5-2.
26.

Plaintiff the State of Oregon, acting by and through the Attorney General of

Oregon, Ellen F. Rosenblum, is a sovereign state of the United States of America. The Attorney
General is the chief law officer of Oregon and is empowered to bring this action on behalf of the
State of Oregon, the Governor, and the affected state agencies under Or. Rev. Stat. §§ 180.060,
180.210, and 180.220.
27.

Plaintiff the Commonwealth of Pennsylvania is a sovereign state of the United

States of America. This action is brought on behalf of the Commonwealth by Attorney General
Josh Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. Attorney
General Shapiro brings this action on behalf of the Commonwealth pursuant to his statutory
authority under 71 Pa. Stat. § 732-204.
28.

Plaintiff the State of Rhode Island has the authority to initiate this action by and

through its Attorney General, Peter F. Neronha. The Attorney General is a constitutional officer
of the State, is vested with all of its common law powers, and has broad discretion to bring
actions for the benefit of the State. See R.I. Const. art. 9, § 12; R. I. Gen. Laws § 42-9-6; see
also State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 470-74 (R.I. 2008).
29.

Plaintiff the State of Vermont, represented by and through its Attorney General,

Thomas J. Donovan, is a sovereign state in the United States of America. The Attorney General
is the state’s chief law enforcement officer and is authorized to pursue this action pursuant to Vt.
Stat. Ann. tit. 3, §§ 152 and 157.
30.

Plaintiff the Commonwealth of Virginia brings this action by and through its

Attorney General, Mark R. Herring. The Attorney General has the authority to represent the

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Commonwealth, its departments, and its agencies in “all civil litigation in which any of them are
interested.” Va. Code Ann. § 2.2-507(A).
31.

Plaintiff the State of Wisconsin, represented by and through its Attorney General,

Joshua L. Kaul, is a sovereign state of the United States of America. The Attorney General
appears in this action at the request of the Governor to represent the interests of the State of
Wisconsin pursuant to Wis. Stat. § 165.25(1m).
32.

Plaintiff the City of Chicago is a municipal corporation and home-rule unit

organized and existing under the constitution and laws of the State of Illinois. Chicago is the
third largest city in the United States by population.
33.

Plaintiff the County of Cook, Illinois (“Cook County”), is the second most

populous county in the United States, with a populace of over five million people. Cook County
is represented by its State’s Attorney, Kimberly M. Foxx, whose powers and duties include
commencing and prosecuting all actions, civil and criminal, in which Cook County or its citizens
might be concerned. 55 ILCS 5/3-9005. It is governed by its Board of Commissioners and
Chief Elected Officer, Toni Preckwinkle (the “County Board”). The County Board serves as the
Board of Public Health for Cook County, owning and operating Cook County Health &
Hospitals System (“CCH”).
34.

Plaintiffs are aggrieved by Defendants’ actions and have standing to bring this

action because the Final Rule harms their sovereign, quasi-sovereign, economic, and proprietary
interests and will continue to cause injury unless and until the Final Rule is vacated.
35.

Defendant United States Department of Health and Human Services (“HHS” or

“the Department”) is a cabinet agency within the executive branch of the United States

9

government, and is an agency within the meaning of 5 U.S.C. § 552(f). HHS promulgated the
Final Rule and is responsible for its enforcement.
36.

Defendant Alex M. Azar II is the Secretary of HHS and is sued in his official

capacity.
37.

Defendant the United States of America is sued as allowed by 5 U.S.C. § 702.
ALLEGATIONS

I.

Federal statutory background.
38.

In the Final Rule, HHS claims to interpret and implement nearly thirty federal

statutory provisions concerning refusals to provide health care services due to religious
objections, several of which concern behavior by state and local governments. 84 Fed. Reg. at
23,170-74, 23,263-69 (to be codified at 45 C.F.R. § 88.3). The most relevant of these statutes
relate to abortion and sterilization; assisted suicide, euthanasia, and mercy killing; and
counseling and referral, as described below.
A.

Federal statutes related to abortion and sterilization.

39.

The Final Rule states that it implements a number of statutes that principally

concern objections to abortion and sterilization. 84 Fed. Reg. at 23,264-66 (to be codified at 45
C.F.R. §§ 88.3(a), (b), (c), (f)).
40.

The Church Amendments, codified at 42 U.S.C. § 300a-7, prohibit government

entities that receive certain federal funds from discriminating against physicians or health care
personnel because they performed or assisted in the performance of any sterilization procedure
or abortion or refused to do so because of religious beliefs or moral convictions. 42 U.S.C.
§ 300a-7(c)(1).

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41.

The Church Amendments also prohibit the use of federal funds to require any

individual to perform or assist in the performance of any sterilization procedure or abortion, if
contrary to that individual’s religious beliefs or moral convictions. Id. § 300a-7(b)(1).
42.

The Coats-Snowe Amendment, codified at 42 U.S.C. § 238n, prohibits state and

local governments that receive federal funds from discriminating against “health care entities,”
defined to include physicians and participants in a health profession training program, on the
ground that they refuse to be trained or provide training in the performance of abortion. 42
U.S.C. §§ 238n(a), (c)(2).
43.

The Weldon Amendment is an appropriations rider that has been included in each

HHS appropriations statute enacted since 2004. E.g., Department of Defense and Labor, Health
and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations
Act, 2019, Pub. L. No. 115-245, § 507(d), 132 Stat. 2981, 3118 (Sept. 28, 2018). The Weldon
Amendment provides that none of the funds appropriated in the Act may be made available to
any state or local government if it discriminates against any institutional or individual health care
entity “on the basis that the health care entity does not provide, pay for, provide coverage of, or
refer for abortions.” Id. § 507(d)(1), 132 Stat. at 3118.
44.

Section 1303 of the Affordable Care Act (“ACA”) permits states to exclude

abortion coverage from qualified health plans; provides that health plans are not required to
cover abortion services as part of their essential health benefits; and prohibits health plans from
discriminating against providers because of their unwillingness to provide or refer for abortions.
42 U.S.C. §§ 18023(a)(1), (b)(1)(A), (b)(4).

11

B.

Federal statutes related to assisted suicide.

45.

The Final Rule also states that it implements several statutes concerning

objections to assisted suicide, euthanasia, or mercy killing. 84 Fed. Reg. at 23,266-67 (to be
codified at 45 C.F.R. §§ 88.3(e), (i)).
46.

Section 1553 of the ACA proscribes state and local governments that receive

federal funding under the ACA from discriminating against a health care entity on the basis that
the entity “does not provide any health care item or service furnished for the purpose of causing,
or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide,
euthanasia, or mercy killing.” 42 U.S.C. § 18113(a).
47.

In addition, the Assisted Suicide Funding Restriction Act of 1997 provides that

the advanced directives requirements applicable to state-administered Medicaid programs,
codified at 42 U.S.C. § 1396a(w), do not require a provider, organization, or its employees “to
inform or counsel any individual regarding any right to obtain an item or service furnished for
the purpose of causing, or the purpose of assisting in causing, the death of the individual, such as
by assisted suicide, euthanasia, or mercy killing . . . .” 42 U.S.C. § 14406.
C.

Federal statutes related to counseling and referral.

48.

The Department states in the Final Rule that it is implementing a number of

federal statutory provisions related to health care counseling or referral. 84 Fed. Reg. at 23,26667 (to be codified at 45 C.F.R. § 88.3(h)).
49.

As applicable to the Plaintiffs, the statute related to state-administered Medicaid

programs, 42 U.S.C. § 1396u-2(b)(3)(B), provides that Medicaid managed care organizations are
not required “to provide, reimburse for, or provide coverage of, a counseling or referral service if
the organization objects to the provision of such service on moral or religious grounds,” so long
as this policy is communicated to prospective enrollees. Id.
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D.

Other statutes that the Final Rule purports to implement.

50.

The Final Rule states that it implements a range of disparate additional statutes

that relate in some way to religious refusals to provide care. 84 Fed. Reg. at 23,267-69 (to be
codified at 45 C.F.R. §§ 88.3(j) – 88.3(q)).
51.

The ACA’s individual mandate, 26 U.S.C. § 5000A, includes an exemption for

individuals whose religious beliefs prohibit accepting the benefits of private or public insurance.
26 U.S.C. § 5000A(d)(2)(A)(i); see 26 U.S.C. § 1402(g)(1).
52.

Seven statutory provisions concern specific exemptions from various

requirements for “religious nonmedical health care providers.” See 42 U.S.C. § 1320a-1(h)
(exemption from limitation on use for capital expenditures); id. § 1320c-11 (exemption from
requirements for quality improvement organizations); id. §§ 1395i-5, 1395x(e), 1395x(y)(1)
(eligibility for nonmedical Medicare services); id. § 1396a(a) (exemption from Medicaid
requirements for medical criteria and standards); id. § 1397j-1(b) (exemption from requirements
to Elder Justice Block Grants to states).
53.

The Final Rule also states that it implements statutes involving the Department’s

grants and research conducted in consultation with the Department of Labor and related to
occupational safety and health, see 29 U.S.C. § 669(a)(5); as well as statutes concerning early
intervention and suicide assessments for youth, see 42 U.S.C. §§ 290bb-36(f), 5106i(a).
II.

The “Protecting Statutory Conscience Rights in Health Care; Delegations of
Authority” rule.
54.

On May 4, 2017, the President signed an Executive Order entitled “Promoting

Free Speech and Religious Liberty.” Exec. Order No. 13,798, 82 Fed. Reg. 21,675 (May 8,
2017). Among other things, this Executive Order directed the Attorney General to issue
“Religious Liberty Guidance . . . interpreting religious liberty protections in Federal law.” Id.
13

55.

On October 6, 2017, as directed by Executive Order 13,798, the Attorney General

issued a memorandum “to guide all administrative agencies and executive departments in the
execution of federal law.” Memorandum from the Attorney General to All Executive
Departments and Agencies, Federal Law Protections for Religious Liberty 1 (Oct. 6, 2017), at
https://www.justice.gov/opa/press-release/file/1001891/download.
56.

The Attorney General’s religious liberty guidance identified several statutory

provisions that the Department purports to implement in the Final Rule – including the Church
Amendments, the Coats-Snowe Amendment, and the Weldon Amendment – as intended to “root
out public and private discrimination based on religion.” Federal Law Protections for Religious
Liberty 8a, 16a-17a.
A.

The 2018 proposed rulemaking.

57.

Pursuant to Executive Order 13,798 and the Attorney General’s religious liberty

guidance, in January 2018, HHS published in the Federal Register a Notice of Proposed
Rulemaking regarding refusals to provide health care services based on religious, moral, ethical,
or other objections. Protecting Statutory Conscience Rights in Health Care; Delegations of
Authority, 83 Fed. Reg. 3880, 3881, 3923 (proposed Jan. 26, 2018) (the “Proposed Rule”)
(“Pursuant to the President’s Executive Order and Executive Branch policy, and in keeping with
the Attorney General’s religious liberty guidance, HHS proposes this rule to enhance the
awareness and enforcement of Federal health care conscience and associated anti-discrimination
laws, to further conscience and religious freedom, and to protect the rights of individuals and
entities to abstain from certain activities related to health care services without discrimination or
retaliation.”).

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58.

The Proposed Rule described broad and unconditional rights for health care

personnel to refuse to provide health care services on the basis of “religious, moral, ethical, or
other reasons.” Id. at 3923.
59.

The Proposed Rule intended to enforce these refusal rights by withholding,

denying, or terminating all federal health care funds provided by the Department in the event the
Department determined that there “appear[ed] to be a failure or threatened failure to comply”
with the Proposed Rule or related statutes. Id. at 3931.
60.

In assessing the likely costs of the Proposed Rule, the Department failed to

include or account for the substantial monetary and nonmonetary costs of the health
consequences and patient burdens resulting from increased likelihood of denials of medical
services and care.
61.

HHS received over 72,000 comments on the Proposed Rule. See Final Rule, 84

Fed. Reg. at 23,180 & n.41.
62.

Nineteen States and the District of Columbia commented in opposition to the

Proposed Rule and identified the shortcomings that are the subject of this challenge. 1
63.

Plaintiff the City of New York also commented on the Proposed Rule, explaining

that the proposal would harm patients, result in discrimination against vulnerable populations,
and impose costly administrative burdens on the City’s health care system. 2

1

See Comment Letter from the Attorneys General of New York, et al. (Mar. 27, 2018), at
https://www.regulations.gov/document?D=HHS-OCR-2018-0002-70188; see also Comment Letter from N.Y. State
Dep’t of Fin. Servs. (Mar. 21, 2018), at https://www.regulations.gov/document?D=HHS-OCR-2018-0002-51681;
Comment Letter from the Attorney General of California (Mar. 27, 2018), at
https://www.regulations.gov/document?D=HHS-OCR-2018-0002-70182.
2

See Comment Letter from N.Y. City Dep’t of Health & Mental Hygiene, et al. (Mar. 27, 2018), at
https://www.regulations.gov/document?D=HHS-OCR-2018-0002-71028.

15

64.

Prominent professional health care organizations and health care providers also

submitted comments opposing the Proposed Rule, including the American Medical Association,
the Association of American Medical Colleges, Planned Parenthood Federation of America, the
American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and
the American Academy of Physician Assistants. 3
B.

The Final Rule.

65.

President Trump announced the Final Rule at a White House event on May 2,

2019. The President proclaimed that the Final Rule provided “new protections of conscience
rights for physicians, pharmacists, nurses, teachers, students, and faith-based charities.” 4
66.

Following President Trump’s White House event, the Department released the

Final Rule on May 2, 2019, and published it in the Federal Register on May 21, 2019. 84 Fed.
Reg. at 23,170, 23-272.
67.

The Final Rule is scheduled to take effect on July 22, 2019. 84 Fed. Reg. at

23,170.
68.

The Final Rule states that its purpose is to “provide for the implementation and

enforcement of the Federal conscience and anti-discrimination laws” identified in the Rule, in
order to “protect the rights of individuals, entities, and health care entities to refuse to perform,
assist in the performance of, or undergo certain health care services or research activities to

3

See, e.g., Comment Letter from Am. Med. Ass’n (Mar. 27, 2018), at
https://www.regulations.gov/document?D=HHS-OCR-2018-0002-70564; Comment Letter from Ass’n of Am. Med.
Colleges (Mar. 26, 2018), at https://www.regulations.gov/document?D=HHS-OCR-2018-0002-67592; Comment
Letter from Planned Parenthood Fed’n of Am. (Mar. 27, 2018), at https://www.regulations.gov/document?D=HHSOCR-2018-0002-71810; Comment Letter from Am. Coll. of Obstetricians & Gynecologists (Mar. 27, 2018), at
https://www.regulations.gov/document?D=HHS-OCR-2018-0002-70647; Comment Letter from Am. Acad. of
Pediatrics (Mar. 27, 2018), at https://www.regulations.gov/document?D=HHS-OCR-2018-0002-71048; Comment
Letter from Am. Acad. of Physician Assistants (Mar. 26, 2018), at https://www.regulations.gov/document?D=HHSOCR-2018-0002-65085.
4

President Donald J. Trump, Remarks at the National Day of Prayer Service (May 2, 2019), at
https://www.whitehouse.gov/briefings-statements/remarks-president-trump-national-day-prayer-service/.

16

which they may object for religious, moral, ethical, or other reasons.” 84 Fed. Reg. at 23,263 (to
be codified at 45 C.F.R. § 88.1).
69.

To effectuate this purpose, the Department purports to rely on nearly thirty

different statutory provisions, none of which provide HHS with explicit authority to issue
legislative rules implementing or interpreting provisions concerning refusals to provide health
care services due to religious or moral objections.
70.

As described below, the Department has attempted to accomplish this purpose by

(1) redefining key statutory terms far beyond their plain text, in order to cover a broader range of
conduct and entities than Congress enacted; (2) assigning to itself an extraordinarily broad and
coercive enforcement power that would allow the Department to terminate billions of dollars in
federal health care funds to the Plaintiffs if the Department decides that Plaintiffs have failed to
comply with the Final Rule or any of the nearly thirty statutes it implements; and (3) ignoring or
expressly claiming to abrogate contrary federal law, including patient protections in the
Affordable Care Act, the Emergency Medical Treatment and Labor Act, and Title VII of the
Civil Rights Act of 1964.
1.
71.

The Final Rule’s definitions of statutory terms.

The Final Rule defines “assist in the performance” to mean “to take an action that

has a specific, reasonable, and articulable connection to furthering a procedure,” which “may
include counseling, referral, . . . or otherwise making arrangements for the procedure . . .
depending on whether aid is provided by such actions.” 84 Fed. Reg. at 23,263 (to be codified at
45 C.F.R. § 88.2).
72.

Under this definition, simply scheduling a medical appointment would constitute

“assistance,” id. at 23,186-87; and recipients of federal funds would be required to guess which
routine procedures or referrals – such as driving an individual with an ectopic pregnancy to the
17

hospital – “may” constitute “assistance” that requires additional steps to accommodate workers
or protect patients, id. at 23,188. The Final Rule does not identify a statutory basis for adopting a
definition this broad and vague.
73.

The Final Rule contains a lengthy definition of “discriminate or discrimination”

that, among other requirements, provides that employers will need a “persuasive justification” to
ask an employee if they are willing to perform an essential job function to which they might
morally object; cannot create an accommodation that excludes a staff member from their “field[]
of practice”; and must depend on an employee’s willingness to accept an accommodation to
avoid discrimination, regardless of the reasonableness of such accommodation. 84 Fed. Reg. at
23,263 (to be codified at 45 C.F.R. § 88.2).
74.

This definition of “discrimination” would appear to require that Plaintiffs’ health

care entities hire someone who cannot deliver health care services that are critical to the health
care entity’s mission, or risk sanction. The Final Rule’s definition of “discrimination” also
would prohibit Plaintiffs’ health care entities from transferring an employee to another area of a
health care entity or a different shift even if the employee’s beliefs categorically preclude the
employee from performing the essential functions of the initial position.
75.

In addition, the Final Rule defines “health care entity” to extend far beyond

physicians and health care professionals, including as well any “health care personnel,”
pharmacists, pharmacies, medical laboratories, and research facilities; and, for purposes of the
Weldon Amendment, also including health insurance issuers, health insurance plans, and plan
sponsors or third-party administrators. 84 Fed. Reg. at 23,264 (to be codified at 45 C.F.R.
§ 88.2).

18

76.

This definition is far broader than the definition of “health care entity” contained

in both the Coats-Snowe Amendment, see 42 U.S.C. § 238n(c)(2); and the Weldon Amendment,
see Pub. L. No. 115-245, § 507(d)(2), 132 Stat. at 3118.
77.

The Final Rule’s definition of “health care entity” would expand the applicable

statutes far beyond their plain meaning, to permit objections by human resources analysts,
customer service representatives, data entry clerks, and numerous others who believe that
analyzing benefits, answering a benefits-related question, or entering a particular preauthorization for an objected-to procedure, for example, is inconsistent with their personal
beliefs.
78.

The Final Rule defines “referral or refer for” to mean “the provision of

information in oral, written, or electronic form . . . where the purpose or reasonably foreseeable
outcome of provision of the information is to assist a person in receiving funding or financing
for, training in, obtaining, or performing a particular health care service, program, activity, or
procedure.” 84 Fed. Reg. at 23,264 (to be codified at 45 C.F.R. § 88.2).
79.

When read together, the Final Rule’s definitions present an unreasonable and

unworkable situation for Plaintiffs, both as direct providers of health care and as regulators and
grantors of others who provide health care within Plaintiffs’ jurisdictions. An ambulance driver
in a private, sub-contracted fleet, a customer service representative at an insurance company’s
hotline, and a hospital pharmacist all share the right, under the Final Rule, not to be asked prior
to hiring whether they can execute the core functions of their jobs without objection. Once hired,
all three have no duty to voluntarily disclose to their employers any religious or moral objection
to any aspect of their work. All three may object at any time to a task requested by their
employers, without advance notice and regardless of the costs to patient health. And should their

19

employers subsequently seek to accommodate an expressed objection, all three have the
categorical right to reject the accommodation as not “effective” – and without any consequence
to their employment.
2.
80.

The Final Rule’s funding termination scheme.

The Final Rule authorizes the Department to withhold, deny, suspend, or

terminate billions of dollars in federal health care funds to the Plaintiffs if the Department
determines that in its view “there is a failure to comply” with any provision of the Final Rule or
the statutes it implements. See 84 Fed. Reg. at 23,271-72 (to be codified at 45 C.F.R. § 88.7(i)).
81.

The Final Rule states that determinations of noncompliance may “be resolved by

informal means,” but expressly authorizes the Department to terminate a recipient’s federal
funds even during the pendency of good-faith voluntary compliance efforts. Id. at 23,271-72 (to
be codified at 45 C.F.R. § 88.7(i)(2)).
82.

The Final Rule’s enforcement scheme disregards that Congress in the relevant

statutes conditioned funding from specific sources to specific and disparate requirements and
prohibitions. Compare, e.g., 42 U.S.C. § 300a-7(c)(1) (Church Amendment restrictions that
apply to specific statutory funding sources), with id. § 300a-7(c)(2) (Church Amendment
restrictions that apply only to “grant[s] or contract[s] for biomedical or behavioral research).
83.

The Department responded to comments during the rulemaking process regarding

the astonishing overbreadth of the fund-termination threat by asserting in the preamble to the
Final Rule that “[t]he only funding streams threatened by a violation of the Federal conscience
and anti-discrimination laws are the funding streams that such statutes directly implicate.” Id. at
23,223. But the final regulatory text contains no description at all of the funds a recipient stands
to lose if the Department determines that the recipient has not complied with the Final Rule. See
id. at 23,271-72 (to be codified at 45 C.F.R. § 88.7(i)). Forcing Plaintiffs to guess which federal
20

funds are at risk – from among the nearly thirty statutes Defendants are claiming to implement
with the Final Rule – is not consistent with constitutional and statutory requirements regarding
separation of powers or grantmaking conditions that may attach to the use of federal funds.
84.

In addition, the Department’s implementation of the Weldon Amendment in

particular would place at risk not only Plaintiffs’ receipt of all federal funds from HHS, but also
Plaintiffs’ receipt of all federal funds from the Department of Labor and Department of
Education as well, including funds entirely unrelated to health care. See Departments of Labor,
HHS, Education, and Related Agencies Appropriations Act, Pub. L. No. 115-245, §§ 3, 507(d),
132 Stat. at 2981, 3118, 3122; 84 Fed. Reg. at 23,172, 23,265-66, 23,272 (to be codified at 45
C.F.R. §§ 88.3(c), 88.7(i)(3)(i), (iii)). The Department cited no statutory support for its
purported authority to create a regulatory enforcement mechanism to terminate funds originating
from the Department of Labor and the Department of Education.
85.

The Final Rule also appears to give the Department authority to terminate

congressionally-appropriated funding in its discretion. See 84 Fed. Reg. at 23,271-72 (to be
codified at 45 C.F.R. § 88.7).
86.

The process for the Department to follow in order to effect compliance with the

Final Rule is described only by cursory reference to three disparate administrative procedures,
each identified by way of non-exclusive example, providing insufficient notice to Plaintiffs of
their rights and responsibilities in an administrative process that could cost Plaintiffs billions of
dollars in health care resources. See 84 Fed. Reg. at 23,272 (to be codified at 45 C.F.R.
§ 88.7(i)(3)) (“[C]ompliance . . . may be effected . . . pursuant to statutes and regulations which
govern the administration of contracts (e.g., Federal Acquisition Regulation), grants (e.g., 45
CFR Part 75) and CMS funding arrangements (e.g., the Social Security Act).”).

21

87.

The Final Rule authorizes the Department to commence a compliance review or

investigation of any of the Plaintiffs if the Department “suspect[s],” based on any source,
noncompliance with the Final Rule or any of the underlying statutes. 84 Fed. Reg. at 23,271 (to
be codified at 45 C.F.R. §§ 88.7(c), (d)).
88.

The Department also claims the right in any investigation to require the Plaintiffs

to waive any rights to doctor or patient privacy or confidentiality. Id. at 23,270-71 (to be
codified at 45 C.F.R. § 88.6(c)).
3.
89.

The Final Rule’s interaction with federal law.

The Final Rule either ignores or expressly disclaims compliance with contrary

federal law.
90.

Section 1554 of the Affordable Care Act prohibits the Secretary of Health and

Human Services from promulgating any regulation that “(1) creates any unreasonable barriers to
the ability of individuals to obtain appropriate medical care; (2) impedes timely access to health
care services; (3) interferes with communications regarding a full range of treatment options
between the patient and the provider; (4) restricts the ability of health care providers to provide
full disclosure of all relevant information to patients making health care decisions; (5) violates
principles of informed consent and the ethical standards of health care professionals; or (6) limits
the availability of health care treatment for the full duration of a patient’s medical needs.” 42
U.S.C. § 18114.
91.

The Final Rule is contrary to each of the limitations on HHS’s rulemaking

authority that Congress imposed through Section 1554 of the ACA. And the Department’s
assertion in the Final Rule that Section 1554 only applies to regulations that themselves
implement the ACA, 84 Fed. Reg. at 23,224, is contrary to both the text and judicial application
of that statute. 42 U.S.C. § 18114; see Oregon v. Azar, No. 19-cv-317, 2019 WL 1897475, at
22

*12 (D. Or. Apr. 29, 2019); California v. Azar, No. 19-cv-1184, 2019 WL 1877392, at *21-22
(N.D. Cal. Apr. 26, 2019).
92.

The Medicaid and Medicare statutes that the Final Rule states it is interpreting,

see 84 Fed. Reg. at 23,263, 23,266-67 (to be codified at 45 C.F.R. § 88.3(h)), provide that with
regard to informed consent, those statutes shall not “be construed to affect disclosure
requirements under State law.” 42 U.S.C. § 1396u-2(b)(3)(B) (Medicaid managed care
organization); see also 42 U.S.C. § 1395w-22(j)(3)(C) (Medicare+Choice). But the Final Rule
seeks to and would interfere with the enforcement of State and local disclosure requirements on
just this issue, as described further in ¶¶ 108-09 below.
93.

The Emergency Medical Treatment and Labor Act (“EMTALA”), 42 U.S.C.

§ 1395dd, requires hospitals to provide emergency care. EMTALA defines the term “emergency
medical condition” to include “a medical condition manifesting itself by acute symptoms of
sufficient severity (including severe pain) such that the absence of immediate medical attention
could reasonably be expected to result in placing the health of the individual (or, with respect to
a pregnant woman, the health of the woman or her unborn child) in serious jeopardy . . . .” 42
U.S.C. § 1395dd(e)(1)(A).
94.

The Final Rule acknowledges EMTALA, noting only that “where EMTALA

might apply in a particular case, the Department would apply both EMTALA and the relevant
law under this rule harmoniously to the extent possible.” 84 Fed. Reg. at 23,188. But the Final
Rule contains no provisions that specify how the statutory mandate to provide emergency care
will be protected when, in the Department’s view, that mandate conflicts with the categorical
refusal-of-care rights that the Final Rule confers on employees. Id. at 23,263.

23

95.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment

based on religious beliefs, 42 U.S.C. § 2000e-2(a); and balances protection of religious beliefs
against employers’ needs by providing that employers are not obligated to accommodate
employees’ religious beliefs to the extent that such an accommodation would cause “undue
hardship” on the employer. Id. § 2000e(j).
96.

The Final Rule expressly provides that it does not incorporate any assessment of

undue hardship or other burden on employers. 84 Fed. Reg. at 23,190-91. And the Final Rule
does not address how the Department will determine if Plaintiffs have engaged in
“discrimination” in instances where an employee’s absolute refusal right conflicts with Title
VII’s balancing test.
4.
97.

The Final Rule’s Regulatory Impact Analysis.

The Final Rule includes a Regulatory Impact Analysis purporting to quantify the

costs and benefits of the Final Rule. 84 Fed. Reg. at 23,226.
98.

The cost-benefit analysis in the Final Rule expressly refuses to quantify the

impact of the Final Rule on access to care, the effect the Final Rule will have on refusals to refer
for services, or the effect on patients who delay or forego health care. Id. at 23,250-54.
99.

Despite expressly declining to assess the true costs of the Final Rule on patient

care, the Department concluded without evidence both that the Final Rule would likely enhance
access to care, see id. at 23,182; and that the Final Rule should be implemented “without regard
to whether data exists on the competing contentions about its effect on access to services.” Id.
III.

The Final Rule harms Plaintiffs.
100.

The Final Rule harms Plaintiffs’ sovereign, quasi-sovereign, economic, and

proprietary interests.

24

A.

The Final Rule interferes with Plaintiffs’ effective administration and
enforcement of their own laws.

101.

Each of the Plaintiffs has enacted laws and policies that carefully balance central

health care concerns with other – sometimes competing – needs, including protecting employees’
religious beliefs and respecting employers’ business needs. The Final Rule upsets the carefully
crafted, longstanding balances struck in Plaintiffs’ statutes and regulations, and harms the
Plaintiffs’ interests in enforcing their own laws.
102.

The Final Rule explicitly purports to preempt conflicting state laws. Id. at 23,226

(“To the extent State or local laws or standards conflict with the Federal laws that are the subject
of this rule, the Federal conscience and antidiscrimination laws preempt such laws and standards
with respect to funded entities and activities . . . . With respect to States, States can decline to
accept Federal funds that are conditioned on respecting Federal conscience rights and
protections.”); id. at 23,272 (to be codified at 45 C.F.R. § 88.8) (“Nothing in this part shall be
construed to preempt any Federal, State, or local law that is equally or more protective of
religious freedom and moral convictions.”)
103.

As set forth in the paragraphs that follow, the Final Rule interferes with and

would undermine the enforcement of Plaintiffs’ laws and regulations that include provisions
concerning (1) access to emergency and medically necessary care; (2) prohibitions on
abandoning patients in medical need; (3) a patient’s right to receive information and ask
questions about recommended treatments so they can make well-considered choices about care
(that is, informed consent); (4) access to lawful prescriptions; (5) how best to balance
accommodation of employees’ religious or moral beliefs with employers’ obligations to patients,
their business, and other employees; (6) women’s access to comprehensive reproductive health
care and related services; and (7) required insurance coverage for contraception and abortion.
25

1.
104.

The Final Rule interferes with Plaintiffs’ laws regarding the provision
of emergency and medically necessary care.

Many of the Plaintiffs have laws requiring the provision of emergency and

medically necessary care that would be hindered by the Final Rule. For example:
a. Colorado requires information about emergency contraception to be provided to
survivors of sexual assault. See Colo. Rev. Stat. § 25-3-110(2).
b. Connecticut law provides that emergency treatment to a victim of sexual assault
includes the provision of emergency contraception to the victim of sexual assault
at the facility upon the request of such victim. See Conn. Gen. Stat. § 19a112e(b)(3).
c. The law in the District of Columbia requires hospitals that provide emergency
care to inform victims of sexual assault of the option to be provided emergency
contraception for the prevention of pregnancy, and to immediately provide
emergency contraception if the victim requests it and if the requested treatment is
not medically contraindicated. D.C. Code § 7-2123. Hospitals are also required
to provide the necessary care and treatment to meet the needs of patients. D.C.
Mun. Regs. Tit. 22-B, § 2024.
d. Delaware law mandates that health care professionals who decline to comply with
an individual instruction or health-care directive or decision for reasons of
conscience provide continued care to a patient, including life sustaining care, until
a transfer can be accomplished. See 16 Del. Code § 2508(e)-(g).
e. Hawai‘i law requires any hospital at which a female sexual assault victim presents
for emergency services to provide medically and factually accurate and unbiased
information about emergency contraception, and where indicated, offer and
26

dispense emergency contraception to female assault victims who request it. No
hospital is required to dispense emergency contraception to a female assault
victim who has been determined to be pregnant. See Haw. Rev. Stat. § 321-512.
Hawai‘i requires certain emergency services be rendered to any ill or injured
person who requests treatment at a hospital which has an emergency service
department. See Haw. Admin. R. § 11-93-10. Hospitals in Hawai‘i shall not
deny admission to any individual on account of race, color, religion, ancestry, or
national origin. See Haw. Admin. R. § 11-93-13(b). Each individual admitted to
a hospital in Hawai‘i shall be treated with consideration, respect, and full
recognition of dignity and individuality, including privacy in treatment and in
care. See Haw. Admin. R. § 11-93-26.
f. Illinois law requires the provision of emergency medical care, and provides that
individuals with conscience objections are not relieved of their obligations to
provide emergency medical care. See 210 ILCS 70/1; 210 ILCS 80/1; 745 ILCS
70/6; Ill. Adm. Code 545.35.
g. Massachusetts law requires the provision of emergency care, including the
provision of emergency contraception to the survivors of sexual assault. See
Mass. Gen. Laws ch. 111, § 70E. Hospitals and other health care facilities open
to the public are prohibited from refusing care, or otherwise discriminating
against patients, on the basis of characteristics including sexual orientation and
gender identity. See Mass. Gen. Laws ch. 272, § 98.
h. Minnesota law states that it shall be the standard of care for all hospitals that
provide emergency care to, at a minimum, provide female sexual assault victims

27

with medically and factually accurate and unbiased written and oral information
about emergency contraception, orally inform female sexual assault victims of the
option to be provided with emergency contraception, and immediately provide
emergency contraception to each sexual assault victim who requests it provided it
is not medically contraindicated and is ordered by a legal prescriber. Minn. Stat.
§ 145.4712.
i. Nevada law requires the provision of emergency medical care, which can require
procedures to which a health professional may object, including abortions. See
Nev. Rev. Stat. §§ 439B.410, 632.475(3).
j. New Jersey law requires that emergency health care facilities provide emergency
care to sexual assault victims, which includes “orally inform[ing] each sexual
assault victim of her option to be provided emergency contraception at the health
care facility.” N.J. Stat. Ann. § 26:2H-12.6c(b).
k. New Mexico law requires a hospital that provides emergency care to sexual
assault survivors to provide medically and factually accurate and objective written
and oral information about emergency contraception, to inform each survivor of
her option to be provided emergency contraception at the hospital, and to provide
emergency contraception for those who request it. N.M. Stat. Ann. § 24-10D-3.
l. New York state law requires the provision of emergency medical care, which can
require abortions or other procedures to which a health care professional may
object. See N.Y. Pub. Health Law § 2805-b. New York law also requires that
mandatory emergency care include the provision of emergency contraception to
survivors of sexual assault. See N.Y. Pub. Health Law § 2805-p.

28

m. New York City law requires that all agency contracts with hospitals provide for
prompt counseling about, and on-site administration of, emergency contraception
for rape survivors. N.Y.C. Admin. Code § 6-125(b).
n. Oregon law requires health plans to cover the provision of emergency care
without preauthorization. ORS § 743A.012.
o. Pennsylvania has established a comprehensive emergency medical services
system, recognizing that “[e]mergency medical services are an essential public
service.” 35 Pa. Cons. Stat. pt. VI ch. 81. As part of this system, Pennsylvania
law requires that mandatory emergency care include the provision of emergency
contraception to survivors of sexual assault. 28 Pa. Code § 117.53.
p. Rhode Island requires every health-care facility that has an emergency medicalcare unit, including free-standing emergency rooms, to provide “prompt, lifesaving, medical-care treatment in an emergency, and a sexual-assault examination
for victims of sexual assault, without discrimination on account of economic
status or source of payment, and without delaying treatment for the purpose of a
prior discussion of the source of payment unless the delay can be imposed without
material risk to the health of the person.” R.I. Gen. Laws § 23-17-26(a).
q. The Commonwealth of Virginia requires all health carriers “providing individual
or group health insurance coverage” who provide “any benefits with respect to
services in an emergency department of a hospital” to provide such coverage
“[w]ithout the need for any prior authorization determination, regardless of
whether the emergency services are provided on an in-network or out-of-network
basis.” Va. Code Ann. § 38.2-3445. The Commonwealth likewise requires

29

physicians administering anesthesia to “[r]emain physically present or
immediately available, as appropriate, to manage complications and emergencies
until discharge criteria have been met.” 18 Va. Admin. Code 85-20-320.
r. Wisconsin law provides that “[n]o hospital providing emergency services may
refuse treatment to any sick or injured person.” Wis. Stat. § 256.30(2).
Wisconsin law also requires a hospital that provides emergency services to
provide emergency contraception to a victim of sexual assault. Wis. Stat.
§ 50.375.
105.

The Final Rule does not address its effect on state laws mandating emergency

treatment, and would substantially interfere with these laws.
2.
106.

The Final Rule interferes with Plaintiffs’ laws that prohibit
abandoning a patient in medical need.

Many of the Plaintiffs have laws and regulations prohibiting health care

professionals from abandoning a patient in medical need without first arranging for the patient’s
care, including:
a. Colorado Medical Board policy requires providers to provide 15 to 30 days of
emergency coverage while a patient obtains a new provider. See Colo. Rev. Stat.
§ 12-36-117(1)(u); Colo. Med. Bd. Pol. 40-2.
b. Connecticut law prohibits health care professionals who are unwilling to comply
with a patient’s advance directives or living will from abandoning a patient in
medical need without first arranging for the patient’s care by another provider.
See Conn. Gen. Stat. § 19a-580a.
c. Delaware law mandates that health care professionals who decline to comply with
an individual instruction or health-care directive or decision for reasons of
30

conscience provide continued care to a patient, including life sustaining care, until
a transfer can be accomplished. See 16 Del. C. § 2508(e)-(g).
d. In the District of Columbia, regulated professionals, including doctors, nurses and
pharmacists, can be disciplined, including by having their licenses revoked, for
abandoning patients. D.C. Code § 3-1205.14(a)(30); see also D.C. Mun. Regs. tit.
29, § 563 (same with respect to emergency medical services agencies and
providers).
e. Hawai‘i laws include provisions for discipline of physicians for conduct or
practice contrary to recognized standards of ethics of the medical profession,
including the American Medical Association’s standards requiring providing care
to patients in emergencies. See Haw. Rev. Stat. § 453-8. Hawai‘i laws also
include provisions for discipline of nurses for unprofessional conduct, including
abandoning a patient. See Haw. Rev. Stat. § 457-12; Haw. Admin. R. § 16-89-60.
f. Illinois law provides that abandoning a patient is grounds for disciplinary action,
including license revocation. 225 ILCS 60/22(A)(16).
g. Maryland law prohibits a physician and other health care providers from
abandoning a patient. E.g., Md. Code Ann., Health Occ. § 14-404(a)(6).
h. In Massachusetts, health care providers are prohibited from abandoning a patient
in need of medical care and may be disciplined, including by the suspension or
revocation of their license, for failing to provide proper care. See, e.g., 244 CMR
§ 9.03(15) (nurses); 243 CMR §§ 1.03(4)(A)(3), 2.07(10)(a)-(b) (physicians).
i. In Michigan, a physician cannot abandon a patient under his or her care. See
Fortner v Koch, 272 Mich. 273, 280 (1936).

31

j. Nevada law prohibits a physician working in an emergency situation from
transferring a patient to another facility unless certain conditions are met. See
Nev. Rev. Stat. § 439B.410.
k. New Jersey law requires an “appropriate, respectful and timely transfer of care”
and “assur[ance] that the patient is not abandoned or treated disrespectfully,”
among other patient protections, if a health care professional declines to
participate in withdrawing or withholding life-sustaining measures “in accordance
with . . . sincerely held personal or professional convictions.” See N.J. Stat. Ann.
§ 26:2H-62(b), (c).
l. New Mexico physicians may suffer a loss of license for abandoning a patient in
medical need. See N.M. Stat. Ann. § 61-6-15(D)(24).
m. New York regulations prohibit health professionals from “abandoning or
neglecting a patient or client under and in need of immediate professional care,
without making reasonable arrangements for the continuation of such care.” 8
NYCRR § 29.2.
n. Pennsylvania law prohibits certain health care professionals from abandoning
their patients. 35 Pa. Cons. Stat. § 8121(a)(4) (emergency medical services
providers); 28 Pa. Code § 21.18(b)(7) (registered nurses); 49 Pa. Code
§ 16.61(a)(17) (physicians); 49 Pa. Code § 21.148(b)(7) (licensed practical
nurses).
o. Rhode Island law provides that abandoning a patient is grounds for disciplinary
action, including license revocation. R.I. Gen. Laws §§ 5-37-5.1 and 5-37-6.3.

32

p. Vermont law provides that a doctor is prohibited from abandoning a patient and
may face misconduct proceedings for doing so. See Vt. Stat. Ann. tit. 26,
§ 1354(a). Additionally, a hospital patient in Vermont has a right to one attending
physician who is primarily responsible for coordinating that patient’s care, and
whose identity is known to the patient. See Vt. Stat. Ann. tit. 18, § 1852(a)(2),
(9). The patient also “has the right to expect reasonable continuity of care.” Id.
§ 1852(a)(11).
q. The Commonwealth of Virginia prohibits medical practitioners from
“terminat[ing] the relationship or mak[ing] his [or her] services unavailable
without documented notice to the patient that allows for a reasonable time to
obtain the services of another practitioner.” 18 Va. Admin. Code 85-20-28.
r. Wisconsin law provides that patient abandonment is a form of unprofessional
conduct subject to various penalties, including revocation of a doctor’s medical
license. See Wis. Stat. § 448.02(3)(c). Patient abandonment occurs when further
treatment is medically indicated and the physician fails to give the patient at least
30 days’ notice about the withdrawal of care, or fails to provide for emergency
care during the period between giving notice of intent to withdraw, and the date
on which the patient-physician relationship ends. See Wis. Admin. Code § Med.
10.03(2)(o).
107.

The Final Rule would interfere with these laws by allowing health care

professionals to refuse to provide services to a patient or to refer that patient to a health care
professional willing to do so.

33

3.
108.

The Final Rule dramatically undermines Plaintiffs’ laws regarding
informed consent.

Many of the Plaintiffs have enacted and implemented legislation regarding

informed consent – that is, the patient’s right to receive information and ask questions about
recommended treatments so they can make well-considered choices about care – including:
a. Colorado requires a broad range of facilities to ensure patients are provided
informed consent, which include informing patients about the availability of
alternative procedures. See Colo. Rev. Stat. § 25-3-102(1)(c), 6 Colo. Code Regs.
1011-1 §§ 6.102(3)(c), 6.104(1)(g); see also Colo. Rev. Stat. § 25-1-121(4).
b. Connecticut law requires healthcare providers to give patients all facts material to
their care so as to ensure that patients can make their own informed medical
decisions. See Logan v. Greenwich Hosp. Ass’n, 191 Conn. 282, 288 (1983).
Additionally, informed consent is required for administration of AIDS vaccine,
see Conn. Gen. Stat. § 19a-591a; treatment with an investigational drug,
biological product, or device, see Conn. Gen. Stat. § 20-14q; medication,
psychosurgery or shock therapy for the treatment of psychiatric disabilities, see
Conn. Gen. Stat. § 17a-543; and sterilization, see Conn. Gen. Stat. § 45a-699a.
Moreover, some facilities are required by regulation as well as the standards of
practice to secure informed consent. See, e.g., Conn. Agencies Regs. § 19-13D3(d)(8) (short term acute care hospitals); Conn. Agencies Regs. § 19a-116-1(c)
(abortion services in outpatient clinics); Conn. Agencies Regs. § 19-13-D56(e)
(outpatient surgery facilities); Conn. Agencies Regs. § 19a-495-6e(f) (inpatient
hospice facilities).

34

c. Delaware law requires that patients receive sufficient information to make
informed medical decisions. See 18 Del. C. § 6852.
d. The law in the District of Columbia recognizes the duty of physicians to inform
patients of the consequences of a proposed treatment that stems from the right of
every competent adult to determine what shall be done with his or her own body.
See Miller-McGee v. Washington Hosp. Ctr., 920 A.2d 430, 439 (D.C. 2007)
(citing Crain v. Allison, 443 A.2d 558, 563-64 (D.C. 1982); Canterbury v. Spence,
464 F.2d 772, 780 (D.C. Cir. 1972)). Each patient in every hospital in the District
of Columbia has the right to be informed in advance about care and treatment and
to make informed decisions regarding care and to receive information necessary
to make decisions. D.C. Mun. Regs., tit. 22-B § 2022. In addition, hospitals must
provide medically and factually accurate written information developed by the
Department of Health regarding emergency contraception for the prevention of
pregnancy due to sexual assault, and must orally inform sexual assault victims
about the option to be provided emergency contraception. D.C. Code §§ 7-2122
& 7-2123.
e. Hawai‘i mandates that certain information must be provided to a patient prior to
obtaining consent to a proposed medical or surgical treatment or a diagnostic or
therapeutic procedure, including “[t]he recognized alternative treatments or
procedures, including the option of not providing these treatments or procedures,”
the “recognized material risks of serious complications or mortality associated
with” the proposed procedure, alternative treatments or procedures, and not
undergoing any treatment or procedure, and the benefits of alternative treatments

35

or procedures. Haw. Rev. Stat. § 671-3(b)(4)-(6); see also Haw. Admin. R. § 1685-25.
f. Illinois law requires health care providers to give patients information concerning
their condition and proposed treatment, 410 ILCS 50/3, and requires that health
care providers conducting HIV testing to first obtain informed consent from
individuals undergoing testing. 410 ILCS 305/3.
g. Maryland law requires that patients give informed consent before any
nonemergency care is provided, including “the benefits and risks of the care,
alternatives to the care, and the benefits and risks of alternatives to the care.”
2019 Md. Laws ch. 285 (to be codified at Md. Code Ann., Health-Gen. § 19-342);
see also Sard v. Hardy, 281 Md. 432 (1977). Informed consent is separately
statutorily required for HIV testing, Md. Code Ann. Health-Gen. § 18-336, and
for treatment using an investigational drug, biological product, or device, Md.
Code Ann., Health-Gen § 21-2B-01.
h. Massachusetts law mandates informed consent for patients. Mass. Gen. Laws ch.
111, § 70E. Patients must be provided all significant medical information
material to their decision whether to undergo a procedure, including information
concerning “the available alternatives, including their risks and benefits.”
Harnish v. Children’s Hosp. Med. Ctr., 387 Mass. 152, 156 (1982).
i. Michigan requires informed consent, which “requires a physician to warn a
patient of the risks and consequences of a medical procedure.” Lucas v. Awaad,
299 Mich. App. 345, 361 (2013).

36

j. Minnesota law mandates that physicians give patients “complete and current
information concerning their diagnosis, treatment, alternatives, risks, and
prognosis as required by the physician’s legal duty to disclose[,]” which “shall
include the likely medical or major psychological results of the treatment and its
alternatives.” Minn. Stat. § 144.651, subd. 9.
k. Nevada law mandates informed consent for patients, which ensures that patients
can make their own informed medical decisions based on what a reasonable
practitioner in the same field of practice would disclose. See Beattie v. Thomas,
99 Nev. 579, 584, 668 P.2d 268, 271 (Nev. 1983).
l. New Jersey law requires that patients admitted to a general hospital “receive from
the physician information necessary to give informed consent prior to the start of
any procedure or treatment,” and that a patient “be advised of any medically
significant alternatives for care or treatment.” N.J. Stat. Ann. § 26:2H-12.8(d).
m. Under New Mexico law, a physician’s failure to obtain informed consent
constitutes negligence. Gerety v. Demers, 92 N.M. 396, 589, 589 P.2d 180 (N.M.
1978).
n. New York law mandates informed consent for patients, which ensures that
patients can make their own informed medical decisions. N.Y. Pub. Health L.
§ 2805-d.
o. Oregon law requires that a physician or physician assistant explain, among other
things, that there may be alternative procedures or methods of treatment to a
procedure or treatment. See ORS 677.097.

37

p. Pennsylvania mandates informed consent for certain procedures, including the
performance of surgery. 40 Pa. Stat. and Cons. Stat. § 1303.504.
q. Rhode Island mandates informed written consent for patients electing abortion
procedures. R.I. Gen. Laws § 23-4.7-2.
r. Vermont protects patients’ rights to informed consent in multiple contexts. See
Vt. Stat. Ann. tit. 12, § 1909(d) (“A patient shall be entitled to a reasonable
answer to any specific question about foreseeable risks and benefits, and a
medical practitioner shall not withhold any requested information.”); Vt. Stat.
Ann. tit. 18, § 1871 (providing a “right to be informed of all evidence basedoptions” for palliative care and “all available options” for terminal care); id.
§ 1852(a)(4) (hospital patient has “right to receive from the patient’s physician
information necessary to give informed consent prior to the start of any procedure
or treatment . . . [w]here medically significant alternatives for care or treatment
exist, or where the patient requests information concerning medical alternatives,
the patient has the right to such information”); id. § 1852(a)(8) (hospital patient
“has the right to expect that within its capacity a hospital shall respond reasonably
to the request of a patient for services”).
s. The Commonwealth of Virginia requires physicians to obtain informed consent
prior to providing certain procedures, except where the patient is incapable of
providing such consent and “a delay in treatment might adversely affect
recovery.” See e.g., Virginia Code Ann. §§ 54.1-2970, 2971; 18 Va. Admin.
Code 85-20-28.

38

t. Wisconsin law imposes a duty on physicians to inform their patients about the
availability of treatments and procedures and their risks and benefits so patients
can make informed, voluntary decisions about their medical care. See Wis. Stat.
§ 448.30. In the specific case of emergency contraception, a hospital must
provide a sexual assault victim “medically and factually accurate and unbiased
written and oral information about emergency contraception and its use and
efficacy” so that she can make an informed decision. Wis. Stat. § 50.375(2)(a).
109.

The Final Rule does not require that a patient be informed that a health care

provider is refusing to counsel them about, or refer them to, certain health care services, which
severely undermines Plaintiffs’ ability to monitor compliance with and enforce their own laws
regarding informed consent.
4.
110.

The Final Rule interferes with Plaintiffs’ laws requiring pharmacies
to fill lawful prescriptions.

Several of the Plaintiffs have enacted laws requiring pharmacies to fill lawful

prescriptions, including:
a. Colorado law provides that pharmacies that do not have emergency contraception
in stock must place a conspicuous notice stating “Plan B Emergency
Contraception Not Available.” Colo. Rev. Stat. § 25-3-110(4). In addition, the
state’s emergency contraception law already contains protections for those who
refuse to provide information “on the basis of religious or moral beliefs.” Id.
§ 25-3-110(3)(a).
b. Connecticut law provides that pharmacies that permit refusal to dispense
contraception are prohibited from participating in the Connecticut State employee
health plan. See Formal Opinion of the Attorney General to the Hon. Nancy
39

Wyman (Formal Opinion 2006-004, Mar. 2, 2006), available at
https://portal.ct.gov/AG/Opinions/2006-Formal-Opinions/Honorable-NancyWyman-Comptroller-Formal-Opinion-2006004-Attorney-General-State-ofConnecticut (last visited May 20, 2019).
c. Delaware regulations mandate that pharmacies “[e]stablish procedures within
operation that maintain standard of practice as it relates to the dispensing of
pharmaceuticals and refusal to dispense pharmaceuticals based on the religious,
moral, or ethical beliefs of the dispensing pharmacist. These procedures shall
include proper supervision of supportive personnel and delegation of authority to
another pharmacist when not on duty.” 24 Del. Admin. Code § 2500-3.1.2.4.
d. Under Maryland law, a pharmacist may only refuse to fulfill a prescription based
on “professional judgment, experience, knowledge, or available reference
materials.” Md. Code. Ann., Health Occ. § 12-501.
e. Minnesota regulations state it is unprofessional conduct for a pharmacist or
pharmacy to “refus[e] to compound or dispense prescription drug orders that may
reasonably be expected to be compounded or dispensed in pharmacies by
pharmacists,” with an exception for abortions. Minn. R. 6800.2250, subpt. 1.
f. Nevada law requires pharmacists to fill prescriptions unless they reasonably
believe in their professional judgment that it would be unlawful, imminently
harmful to the medical health of the patient, fraudulent, or not for a legitimate
medical purpose. See Nev. Admin. Code § 639.753(1). Nevada law has specific
requirements for pharmacists to fill contraception prescriptions. See Nev. Rev.
Stat. § 639.28075.

40

g. New Jersey law requires pharmacy practice sites to “fill lawful prescriptions for
prescription drugs or devices[,]” even if an employee of the practice objects to
filling the prescription based upon “sincerely held moral, philosophical, or
religious beliefs.” N.J. Stat. Ann. § 45:14-67.1(a).
h. Pennsylvania law allows a pharmacist to decline to fill or refill prescriptions
based on a religious, moral, or ethical belief, but recognizes that “the pharmacist
has a professional obligation to take steps to avoid the possibility of abandoning
or neglecting a patient.” 49 Pa. Code § 27.103(a).
i. Under Wisconsin law, “a pharmacy shall dispense lawfully prescribed
contraceptive drugs and devices and shall deliver contraceptive drugs and devices
restricted to distribution by a pharmacy to a patient without delay.” Wis. Stat.
§ 450.095(2).
111.

The Final Rule would potentially preempt or interfere with these laws and allow

individual pharmacists or pharmacies to refuse to provide or dispense lawful prescriptions. See
84 Fed. Reg. at 23,196, 23,264 (to be codified at 45 C.F.R. § 88.2).
5.

112.

The Final Rule hinders Plaintiffs’ administration and enforcement of
their laws regarding the accommodation of religious objections in the
workplace and in the provision of health care.

Many of the Plaintiffs have enacted carefully-crafted laws designed to balance

accommodation of employees’ religious or moral beliefs with employers’ obligations to patients,
their business, and other employees. For example:
a. The City of Chicago has enacted laws respecting religious objections in the
workplace while balancing the needs of employers. Under the City’s Human
Rights Ordinance, employers are required “to make all reasonable efforts to
accommodate the religious beliefs, observances, and practices of employees or
41

prospective employees unless the employer demonstrates that he is unable to
reasonably accommodate an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer's
business.” Chicago Mun. Code § 2-160-050.
b. Delaware requires health care providers or institutions that decline to comply with
an individual instruction or health-care decision on the basis of conscience to
promptly inform the patient and to continue providing care, including lifesustaining care, to the patient until a transfer can be effected. See 16 Del. C.
§ 2508(e)-(g). Institutional denials must be based on a prior written policy that
was communicated to the patient. See id.
c. The District of Columbia provides an exemption for churches and other religious
nonprofit entities from the statutory requirement to cover contraceptives in health
insurance plans, and requires any employers claiming the exemption to provide
notice to its employees. D.C. Code § 31-3834.04(a). District law also prohibits
discrimination in employment based on a person’s actual or perceived religion,
however actions that may have a discriminatory effect are not unlawful if they are
not intentionally devised or operated to discriminate based on religion and can be
justified by business necessity. See D.C. Code §§ 2-1401.03, 2-1401.11, 21401.31.
d. Hawai‘i law prohibits discriminatory employment practices, including on the
basis of religion. See Haw. Rev. Stat. § 378-2. This law, however, may not
prohibit or prevent employers from “the establishment and maintenance of bona
fide occupational qualifications reasonably necessary to the normal operation of a

42

particular business or enterprise” that “have a substantial relationship to the
functions and responsibilities of prospective or continued employment,” or from
“refusing to hire, refer, or discharge any individual for reasons relating to the
ability of the individual to perform the work in question.” Haw. Rev. Stat. § 3783(2)-(3). Hawai‘i allows religious employers to provide their employees a health
plan without coverage for contraceptive services if the employers provide written
notice of the contraceptive services the employer refuses to cover for religious
reasons and written information describing how enrollees may directly access
contraceptive services in an expeditious manner. See Haw. Rev. Stat. § 432:10A116.7.
e. Maryland law prohibits employers from discriminating against any individual
with respect to that individual’s religion, except when providing a notice or
advertisement indicating a bona fide occupational qualification for employment.
See Md. Code Ann., State Gov’t § 20-606 (West). Additionally, Maryland law
provides that a person may not be required “to perform or participate in, or refer
to any source for, any medical procedure that results in artificial insemination,
sterilization, or termination of pregnancy,” except insofar as “the failure to refer a
patient to a source for any medical procedure that results in sterilization or
termination of pregnancy” would be the cause of death or serious physical injury
or serious long-lasting injury to the patient or otherwise contrary to the standards
of medical care. Md. Code. Ann., Health Gen. § 20-214.
f. Massachusetts law requires employers to make reasonable accommodations “to
an employee’s or prospective employee’s religious observance or practice,” but

43

does not require accommodations that cause an “undue hardship.” Mass. Gen.
Laws ch. 151B § 4(1A).
g. Minnesota law states that it is an unfair employment practice for an employer to
discriminate against a person with respect to hiring, tenure, compensation, terms,
upgrading, conditions facilities or privileges of employment, and to refuse to hire
or maintain a system of employment which unreasonably excludes a person
seeking employment, except when based on a bona fide occupational
qualification. Minn. Stat. § 363A.08, subd. 2.
h. New Jersey carefully balances conscience protection with patients’ right to care.
Under New Jersey’s conscience law, no person, hospital, or health care facility
shall be “required to perform or assist in the performance of an abortion or
sterilization.” N.J. Stat. Ann. § 2A:65A-1, -2. This law is not applicable to nonsectarian non-profit hospitals. Doe v. Bridgeton, 366 A.2d 641, 647 (N.J. 1976).
New Jersey law also permits “a private, religiously-affiliated health care
institution” to “develop institutional policies and practices defining circumstances
in which it will decline to participate in withholding or withdrawing of specified
measures utilized to sustain life.” N.J. Stat. Ann. § 26:2H-65(b). Such policies
must be in writing and must be communicated to patients or their health care
representatives “prior to or upon admission, or as soon after admission as is
practicable.” Id. “If the institutional policies and practices appear to conflict with
the legal rights of a patient wishing to forego health care, the health care
institution shall attempt to resolve the conflict” and must ensure that the patient
“is not abandoned or treated disrespectfully.” Id.

44

i. New Mexico prohibits employers, unless based on a bona fide occupational
qualification, from discriminating in employment on the basis of religion. N.M.
Stat. Ann. § 28-1-7(A)-(C). Likewise, New Mexico prohibits any person in a
public accommodation from distinguishing directly or indirectly in offering or
refusing to offer services, facilities, or goods on the basis of religious affiliation.
N.M. Stat. Ann. § 28-1-7(F). Further, the State’s Religious Freedom Restoration
Act prohibits the State from burdening the free exercise of religion, unless a
restriction is of general applicability, does not discriminate among religions, and
survives strict scrutiny. N.M. Stat. Ann. § 28-22-3.
j. New York state law applies a careful balancing test to the accommodation of
religious beliefs in the workplace, prohibiting employers from imposing any
employment conditions that would require an individual to forego a sincerely held
practice of his or her religion “unless, after engaging in a bona fide effort, the
employer demonstrates that it is unable to reasonably accommodate the
employee’s or prospective employee’s sincerely held religious observance or
practice without undue hardship on the conduct of the employer’s business.”
N.Y. Exec. L. § 296(10).
k. New York City has enacted laws respecting religious objections that balance
competing interests. In the context of employment, the City Human Rights Law
prohibits employers from imposing “upon a person as a condition of obtaining or
retaining employment any terms or conditions, compliance with which would
require such person to violate, or forego a practice of, such person’s creed or
religion” and requires the employer to make reasonable accommodation to the

45

religious needs of such person. N.Y.C. Admin. Code § 8-107(3)(a). Employers
are required to “engage in a cooperative dialogue within a reasonable time with a
person who has requested [a religious] accommodation.” Id. § 8-107(28).
l. Oregon protects health care providers who decline to participate in physicianassisted dying while balancing the rights of patients to receive care. ORS
127.885. In the area of reproductive health, Oregon law allows individuals to
decline to dispense contraception or participate in abortion procedures, provided
the individuals provide advance notice to the institution. ORS 435.225; ORS
435.485(2). Likewise, individuals are not required to provide advice on
terminating pregnancies if they advise the patient they will decline to provide
such advice. ORS 435.485(1). Oregon law also allows institutions to deny
admission to individuals for the purpose of terminating a pregnancy, again with
the requirement that an institution adopt a policy and inform patients of that
policy. ORS 435.475.
m. With regard to lawful objections to assisting in the performance of an abortion or
sterilization, Pennsylvania requires employers to “make reasonable
accommodations to the needs of their employe[e]s,” unless such accommodations
would constitute “undue hardship to the conduct of the employer's business.” 16
Pa. Code § 51.44(b). “Such undue hardship, for example, may exist where the
employe[e]’s needed work cannot be performed by another employe[e] of
substantially similar qualifications in the situation where and at the time when the
person refuses to perform or participate in the performance of abortion or

46

sterilization procedures or where the employe[e] refuses to perform his normally
assigned duties incident to employment.” Id. § 51.44(c).
n. Rhode Island regulation under the Department of Health permits a licensed
pharmacist to “decline to dispense a drug or device, pursuant to an order or
prescription, on ethical, moral, or religious grounds only if the licensed
pharmacist has previously notified the pharmacy owner, in writing, of the
device(s), drug or class of drugs to which he or she objects, and the pharmacy
owner can, without creating undue hardship, provide a reasonable accommodation
of the licensed pharmacist's objection. The licensed pharmacy owner shall
establish protocols to ensure that the patient has timely access to the prescribed
drug or device despite the licensed pharmacist's refusal to dispense the
prescription or order. For the purpose of this section, ‘reasonable
accommodation’ shall mean the pharmacy owner has demonstrated that they
explored any available reasonable alternative means of accommodating the
licensed pharmacist’s ethical, moral, or religious objections, including the
possibilities of excusing the licensed pharmacist from those duties or permitting
those duties to be performed by another person, but is unable to reasonably
accommodate the ethical, moral, or religious objections without undue hardship
on the conduct of the pharmacy owner’s business.” 216-RICR-40-15-1.15.2.
o. Vermont law prohibits discriminatory employment practices, including on the
basis of religion, except where required by “a bona fide occupational
qualification.” Vt. Stat. Ann. tit. 21 § 495(a).

47

p. The Commonwealth of Virginia has pre-existing laws permitting any person “who
shall state in writing an objection to any abortion or all abortions on personal,
ethical, moral or religious grounds” to be exempted from “procedures which will
result in such abortion.” Va. Code § 38.2-3445. The Commonwealth likewise
allows genetic counselors to opt out of “counseling that conflicts with their
deeply-held moral or religious beliefs” and protects such objectors from liability
“provided [the counselor] informs the patient that he [or she] will not participate
in such counseling and offers to direct the patient to the online directory of
licensed generic counselors maintained by the Board.” Va. Code Ann. § 54.12957.21.
q. Wisconsin law balances the interests of objectors, patients, and medical facilities.
Specifically, Wisconsin law provides conscience protection for persons who
object to abortion or sterilization on “moral or religious grounds.” But a person
who objects must state “in writing his or her objection to the performance of or
providing assistance to such a procedure . . . shall not be required to participate in
such medical procedure.” Wis. Stat. § 253.09(1). Such a refusal shall not be the
basis for any damages claim or any disciplinary or recriminatory action against
such person. Id.; see also Wis. Stat. §§ 441.06(6); 448.03(5). Further, no
hospital, school, or employer may discriminate against any person with respect to
admission, hiring, retention, or other condition of student or employee status on
the basis of the person’s “refus[al] to recommend, aid or perform” abortion or
sterilization. Wis. Stat. § 253.09(3).

48

113.

The Final Rule interferes with these laws by requiring the absolute

accommodation of all employees with religious objections, without considering the needs of
employers or patients.
114.

By elevating an objector’s rights over the rights of patients and employers, the

Final Rule will cause substantial harm to the Plaintiffs’ interest in enforcing their employment
accommodation laws and in improving patient health outcomes.
6.

115.

The Final Rule interferes with Plaintiffs’ laws protecting women’s
access to comprehensive reproductive health care and related
services.

A number of the Plaintiffs have enacted laws that protect women’s access to

contraception, abortion, and other reproductive health care services, including laws that
accommodate religious objections to the provision of such services by requiring adequate notice
of such objections. For example:
a. Colorado law protects women’s access to contraception, requiring health plans to
provide coverage for contraception under specific circumstances. Colo. Rev. Stat.
§§ 10-16-104(3)(a), -104.2. Access to birth control procedures, supplies, and
information must also be provided to minors under specific circumstances. Colo.
Rev. Stat. § 13-22-105.
b. Connecticut law protects women’s access to contraception. Specifically,
Connecticut law provides that “[t]he decision to terminate a pregnancy prior to the
viability of the fetus shall be solely that of the pregnant woman in consultation
with her physician.” Conn. Gen. Stat. § 19a-602(a). Connecticut law also allows
an individual to refuse to assist in a non-emergency abortion. Conn. Agencies
Regs. § 19-13-D54.

49

c. The District of Columbia does not restrict the right to abortion and District law
establishes the right of patients younger than 18 to consent to abortion care
without parental involvement. See D.C. Mun. Regs. tit. 22-B, § 22-B600.
d. Hawai‘i law protects women’s access to abortions. Specifically, Hawai‘i law
provides that “[t]he State shall not deny or interfere with a female’s right to
choose or obtain an abortion of a nonviable fetus or an abortion that is necessary
to protect the life or health of the female. Haw. Rev. Stat. § 453-16(c). Hawai‘i
law also allows an individual or hospital to refuse to participate in an abortion and
such individual or hospital will not be liable for a refusal. Haw. Rev. Stat. § 45316(e).
e. Illinois law requires certain agencies to deliver specified services either directly
on-site or by referral, including contraception and other reproductive health care
services. 77 Ill. Adm. Code 635.90.
f. Massachusetts law protects women’s access to abortion and contraception,
including emergency contraception. See, e.g., Mass Gen. Laws ch. 112, §§ 12LM, ch. 272 § 21A. Massachusetts law also provides specific conscience
protections for health care workers that are limited to religious or moral
objections to abortion and sterilization, including the right to refuse to participate
in scheduled medical procedures that result in abortion or sterilization after
providing written notice of an objection. See Mass. Gen. Law ch. 112, § 12I.
g. Nevada law makes it unlawful to require an employee’s participation in the
induction or performance of an abortion outside of medical emergency situations

50

upon filing of a written statement indicating a moral, ethical, or religious basis for
refusal to participate. See Nev. Rev. Stat. § 632.475(3).
h. New Mexico enacted the Family Planning Act, N.M. Stat. Ann. §§ 24-8-1 through
24-8-8, to protect access to family planning services including contraceptive
procedures, diagnosis, treatment, and supplies. The legislature found it “desirable
that family planning services be readily accessible to all who want and need
them” and that “dissemination of information about family planning by the state
and its local government units is consistent with public policy.” N.M. Stat. Ann.
§ 24-8-3. The State makes its family planning services available with public
funds to the extent that public funds are available, including to medically indigent
persons at no cost. N.M. Stat. Ann. 24-8-7. New Mexico requires payment for
medically necessary abortions with public funds for indigent women, as its Equal
Rights Amendment to the state constitution, N.M. Const., art. II, § 18, provides
greater protection against gender discrimination than does federal law. New
Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, 126 N.M. 788,
975 P.2d 841 (N.M. 1998).
i. New York state law, in order to facilitate staffing and scheduling practices that
accommodate conscience and religious beliefs, provides that an individual may
refuse to assist in a non-emergency abortion as long as the individual notifies the
responsible hospital or other institution in advance. N.Y. Civ. Rights L. § 79-I.
j. Under Oregon law a public body, or an officer, agent, or employee of a public
body, may not deprive a consenting individual of the right to obtain and use safe

51

methods of contraception, nor interfere with or restrict those rights by regulating
access to benefits, services or information. ORS 435.200.
k. Pennsylvania law allows hospitals and health care facilities to decline to provide
abortions or sterilizations on moral, religious or professional grounds as long as
the facility provides a written ethical policy. 43 Pa. Stat. Ann. § 955.2; 16 Pa.
Code §§ 51.31–51.33. Pennsylvania law likewise allows individuals to refuse to
assist in the performance of abortion or sterilization procedures on moral,
religious or professional grounds as long as they notify the responsible hospital or
institution in advance. 43 Pa. Stat. Ann. § 955.2; 16 Pa. Code §§ 51.41–51.44.
Such individuals may be subject to disciplinary action, however, if their
expression of refusal “constitutes an overt act which disrupts hospital procedures,
operations, or services or which endangers the health or safety of any patient.” 16
Pa. Code § 51.42(a). Pennsylvania also allows hospitals to refuse to provide
emergency contraception to sexual assault victims for religious or moral reasons
as long as they provide 30 days written notice to the Pennsylvania Department of
Health. 28 Pa. Code § 117.57.
l. Rhode Island requires a physician or anyone who works in a healthcare facility to
give written notice of objection in performing abortions or sterilization
procedures. See RIGL § 23-17-11.
m. The Commonwealth of Virginia requires insurers who otherwise provide
prescription drug coverage to offer coverage for “any prescribed drug or device
approved by the United States Food and Drug Administration for use as a
contraceptive.” Va. Code Ann. § 38.2-3407.5:1.

52

116.

The Final Rule would undermine these laws and constitutional requirements by

allowing an individual or health care entity to refuse to provide contraception or assist in an
abortion without adequate notice to the responsible hospital or other appropriate institution.
7.
117.

The Final Rule interferes with Plaintiffs’ laws that require insurance
coverage for contraception and abortion.

A number of the Plaintiffs have enacted statutes or regulations requiring insurance

providers to offer coverage for contraception and abortion.
a. Connecticut has “Contraceptive Equity Laws” that require insurers to provide
coverage for contraception. See Conn. Gen. Stat. §§ 38a-503e(a), 38a-530e(a).
Healthcare facilities that may find such procedures objectionable are permitted to
comply with these requirements by contracting with one or more independent
providers. See Conn. Gen. Stat. § 19a-112e(c).
b. Delaware requires health insurance plans to cover over-the-counter contraceptives
without any cost-sharing, including emergency contraceptives. See Del. Senate
Bill No. 151, An act to amend Title 18, Title 29, and Title 31 of the Delaware
Code Relating to Insurance Coverage of Contraceptives, 149th General
Assembly.
c. The District of Columbia requires individual and group health plans to cover all
FDA-approved contraceptive drugs, devices, products and services for women
without cost-sharing. D.C. Code § 31-3834.03. District law also permits
pharmacists to prescribe as well as dispense prescription methods of contraception
for up to a 12-month supply at one time for women who do not face serious risks
from contraception. D.C. Code § 31-3834.01. The provision requires individual

53

and group health plans to cover a full-year supply of prescription contraceptives.
Id.
d. Hawai‘i law requires that all employer groups, mutual benefit societies, and
health maintenance organizations, provide coverage for contraceptive services or
supplies for the subscriber or any dependent of the subscriber who is covered by
the policy. Employer groups, mutual benefit societies, and health maintenance
organizations that provide contraceptive services or supplies, or prescription drug
coverage, shall not exclude any prescription contraceptive supplies or impose any
unusual copayment charge, or waiting requirements for such supplies. See Haw.
Rev. Stat. §§ 431:10A-116.6; 432:1-604.5; 432D-23.
e. Illinois law requires insurers to provide coverage for contraception. 215 ILCS
5/356z.4.
f. Maryland has “Contraceptive Equity Laws” governing access to broad
contraceptive coverage. See Md. Code Ann., Ins. §§ 15-826 to 826.2.
Maryland’s essential health benefits requires non-grandfathered individual and
small group plans to cover abortion services. See
https://insurance.maryland.gov/Insurer/Documents/bulletins/15-33_2017-ACARate-Form-Filing-Deadlines-and-Substitution-Rules.pdf.
g. Massachusetts requires most commercial insurance plans to provide no-cost
coverage for women’s contraceptive care and services, including sterilization and
emergency contraception. See Mass. Gen. Law ch. 175, § 47W; Mass. Gen. Law
ch. 176A § 8W; Mass Gen. Law ch. 176B § 4W; Mass. Gen. Law ch. 176G § 4O.

54

h. Nevada requires insurers to provide coverage for contraception, except for those
affiliated with a religious organization who object on religious grounds. See Nev.
Rev. Stat. §§ 689A.0418, 689B.0378, 689C.1676, 695A.1865, 695B.1919,
695C.1696.
i. New Jersey law requires that certain health insurers, health service corporations,
and employee health benefits plans that cover outpatient prescription drugs also
provide coverage for female contraceptives. See e.g., N.J. Stat. Ann. § 17B:27A19.15; N.J. Stat. Ann. § 17B:26-2.1y; N.J. Stat. Ann. § 52:14-17.29j; N.J. Stat.
Ann. § 17:48F-13.2; N.J. Stat. Ann. § 17:48E-35.29. The laws allow for limited
exemptions for religious employers, requiring written notice of exemption for
prospective enrollees. See e.g., N.J. Stat. Ann. § 17B:27A-19.15; N.J. Stat. Ann.
§ 17B:26-2.1y; N.J. Stat. Ann. § 17:48F-13.2; N.J. Stat. Ann. § 17:48E-35.29.
j. New Mexico in its 2019 legislative session amended group health coverage
requirements under the Health Care Purchasing Act to require coverage, at a
minimum, for at least one product or form of contraception in each of the
contraceptive method categories identified by the federal Food and Drug
Administration, a sufficient number and assortment of oral contraceptive pills,
and clinical services related to the provision or use of contraception. H. B. 89
(2019), chaptered at Chapter 263, Sec. 9 (signed Apr. 4, 2019).
k. New York requires all fully insured insurance policies that provide hospital,
surgical, or medical expense coverage to cover medically necessary abortions
without copayments, coinsurance, or annual deductibles. See 11 N.Y.C.R.R.
52.16. New York’s recently-enacted Comprehensive Contraception Coverage

55

Act, which will go into effect in January 2020, will require group health insurance
companies to cover doctor-prescribed F.D.A. approved contraceptive devices as
well as voluntary sterilization procedures for women. N.Y. Ins. Law
§ 3221(1)(16) (eff. Jan. 1, 2010).
l. Oregon law requires health plans to cover the provision of reproductive health
care, including contraception and abortion. ORS 743A.067.
m. Rhode Island requires health plans to provide coverage for F.D.A. approved
contraceptive drugs and devices requiring a prescription (except RU 486). R.I.
Gen. Laws §§ 27-18-57; 27-19-48; 27-41-59.
n. Vermont law requires reproductive health equity in insurance coverage, such that
a health insurance plan must provide coverage for contraceptive drugs and
services to the same extent that plan provides coverage for any drugs or services.
Vt. Stat. Ann. tit. 8, § 4099c.
o. The Commonwealth of Virginia requires insurers who otherwise provide
prescription drug coverage to offer coverage for “any prescribed drug or device
approved by the United States Food and Drug Administration for use as a
contraceptive.” Va. Code Ann. § 38.2-3407.5:1.
118.

The Final Rule interferes with Plaintiffs’ ability to enforce their laws requiring

insurance coverage for contraception and abortion-related services by, among other things,
defining the group of individuals and entities authorized to exercise conscience objections to
include not only health care professionals but also sponsors of health insurance plans.

56

B.

The Final Rule harms Plaintiffs’ health care institutions.

119.

Many of the Plaintiffs – including Colorado, Connecticut, Delaware, Hawai‘i,

Illinois, Massachusetts, New York, New York City, Oregon, Virginia, and Cook County – own
and operate health care institutions, including teaching hospitals and medical education centers.
120.

In addition, a number of the Plaintiffs – including Hawai‘i, Pennsylvania, and

Vermont – subcontract or sub-grant HHS funds to private health care institutions within their
states.
121.

These health care institutions provide a range of services to Plaintiffs’ diverse

populations, including emergency care, long-term care, and primary and preventative care.
122.

The Final Rule places a number of new and stringent limitations upon the ability

of Plaintiffs’ institutions to inquire about whether members of their staff object to “performing,
referring for, participating in, or assisting in the performance of” particular services or activities.
First, the Final Rule does not permit any inquiry into prospective staff members’ religious or
moral objections prior to their hiring, whether or not such objections would materially impact the
prospective employee’s ability to fulfill their job obligations. See 84 Fed. Reg. at 23,263 (to be
codified at 85 C.F.R. § 88.2).
123.

Second, post-hiring, Plaintiffs’ health institutions may inquire about staff

members’ objections no more frequently than “once per calendar year,” absent a “persuasive
justification” which is not specified or defined in the Final Rule. Id.
124.

Third, beyond annual post-hire inquiries initiated by Plaintiffs’ institutions, the

Final Rule places no duty – and appears to prohibit the Plaintiffs from imposing a duty – on staff
members to disclose known religious or moral objections to participating in a service or activity.
See id.

57

125.

Fourth, to the extent Plaintiffs’ institutions learn of a religious or moral objection

by a staff member, any accommodation offered to that individual must be “voluntarily
accept[ed]” by the staff member and must be “effective” – a term undefined in the Final Rule –
in order for Plaintiffs to avoid “engag[ing] in discriminatory action.” Id.
126.

Fifth, any effort Plaintiffs make to continue providing any objected-to service,

program, or treatment using alternate staff would itself be impermissible under the Final Rule if
that effort “require[s] any additional action” by the objecting individual, id. (emphasis added); or
if it “exclude[s] protected [persons] from fields of practice.” Id.
127.

Alone and in combination, these severe and unrealistic constraints on the

operation of Plaintiffs’ institutions will dramatically undermine their effectiveness and
efficiency, leading to significantly increased costs, worse health outcomes, and greatly increased
risk of catastrophic error.
128.

Plaintiffs’ institutions currently rely on sufficient notice of staff members’

religious or moral objections in order effectively to staff and run their various departments. For
example, emergency care departments within these institutions must be able to plan and staff for
urgent situations in which the absence of a single staff member could threaten the health, safety,
and life of patients in distress. The Final Rule’s new limitations upon the notice a health
institution may seek concerning staff members’ religious or moral objections undermines the
ability of Plaintiffs’ institutions to staff their operations effectively, and as a result, threatens
patient care and public health.
129.

As a result of this threat, Plaintiffs’ institutions must preemptively plan to

increase staff, in order to avoid any such risks of patient harm. In some instances, this will take
the form of double-staffing emergency rooms, end-of-life care, and other departments in which

58

the risk of an objection without sufficient notice to Plaintiffs’ institutions would have devastating
consequences for patients.
130.

The cost of this parallel staffing will be unduly burdensome to the Plaintiffs. For

example, New York City will be forced to increase expenditures on salaries to ensure there is
sufficient staff to comply with objections under the Final Rule. As shown below, in the 2018
fiscal year, New York City Health + Hospitals (“H+H”) – the City’s municipal hospital system
and the largest public health care system in the United States – directly employed 35,860 fulltime and part-time staff, 8,433 affiliate and temporary staff persons, and 700 staff persons who
provided hourly services. The salaries for these workers amounted to over $4.1 billion in fiscal
year 2018. The cost of hiring additional employees to establish the parallel staff needed to
comply with the Final Rule would therefore be significant.

FY18
Full Time
Equivalent
(FTEs)
Health +
Hospital
Corp
($ in 000s)

131.

H+H (Full
Time & Part
Time Staff)

Affiliate

Allowances Overtime

Temporary
Staffing

FY18
Total

35,860

5,657

700

2,144

2,776

47,138

$2,588,661

$1,208,964

$51,931

$155,881

$155,529

$4,160,966

This burden on Plaintiffs is especially pronounced in areas within the Plaintiffs’

states in which there are few other health care providers, such as rural areas, and in areas in
which other providers are more likely to be religious and have objections of their own to the
provision of certain types of care.
132.

The Final Rule also harms Plaintiffs’ health institutions by undermining

longstanding efforts by those institutions to build trust with the patient communities they serve.

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As set forth above, the Final Rule drastically limits the ability of Plaintiffs’ institutions to seek
advance notice of their staff members’ religious or moral objections, and to plan for and
accommodate such objections accordingly. The likelihood that Plaintiffs’ health institutions may
not know of staff members’ objections in advance, which may then be expressed at the time of a
needed procedure and potentially in front of a patient, jeopardizes the trust of patients that these
institutions have worked for years to develop.
C.

The Final Rule harms Plaintiffs by threatening billions of dollars in
congressionally-appropriated health care funds.

133.

Given the threat posed by the enforcement provisions of the Final Rule that the

Department may withhold, deny, suspend, or terminate billions of dollars in federal health care
funds to the Plaintiffs in the Department’s discretion, the Plaintiffs face the “Hobson’s choice” of
either (1) implementing costly changes to their laws, regulations, and policies, thereby
threatening effective patient care and efficient administration of their health care systems; or (2)
risking the loss of all of the federal funds they rely on to provide that care.
134.

The amount of federal funding at risk runs to the hundreds of billions of dollars

when considering appropriated funds from the Department alone.
135.

According to publicly available information on the Department’s Tracking

Accountability in Government Grants System (“TAGGS”), collectively, the Plaintiffs received
nearly $200 billion in federal health care funding in the 2018 fiscal year that the Final Rule
threatens should the Department determine, in its discretion, that any of the Plaintiffs are not
complying with the Final Rule or any of the statutes it implements.
136.

The City of Chicago’s Department of Public Health (CDPH) receives almost $90

million in annual federal health care funding from the Department, including over $89 million in
federal grants and $311,701 in Medicaid reimbursement in 2018. These grants include
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approximately $6.5 million for HPV and other vaccine coverage; $9.25 million for maternal and
child health, $40 million for HIV prevention and treatment, $3.4 million for sexually transmitted
disease and teen pregnancy prevention; and over $19 million for bioterrorism and ebola
preparedness and response.
a. CDPH uses these funds to provide a wide array of health services and programs to
its residents, including operating thirteen clinics throughout the City that provide
free vaccinations, mental-health services, and testing and treatment for sexually
transmitted diseases. While CDPH offers free healthcare to all of its residents, the
majority of its patients are non-white and medically vulnerable populations. In
addition to operating its own clinics, CDPH uses the federal health care grants it
receives to help partner with many community-based health centers that offer
additional medical services and health education programs. These delegates
operate clinics that, for example, provide care for the needs of woman and
children, and primary care for people living with HIV/AIDS.
b. This funding is crucial for CDPH’s operations: 75% of CDPH’s total budget of
nearly $177 million comes from federal sources, and 50% of CDPH’s total budget
comes directly from the Department.
137.

According to TAGGS, Colorado received nearly $6.4 billion in federal funds

from the Department in federal fiscal year 2018 for entities identified as being at the state level
in the TAGGS system. The Colorado Department of Health Care Policy and Financing,
responsible for administering Medicaid and Children’s Health Insurance Program in Colorado,
account for $5.31 billion of those expenditures. Colorado uses these funds, in concert with state
funds, to provide health care coverage to its members. As of the end of April 2019, there were

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1.24 million Coloradoans enrolled in these programs. For state fiscal year 2019-20, the Colorado
Medicaid Department’s budget will be $10.66 billion, which includes $6.04 billion in federal
funds. This represents 33.35% of the Colorado budget for that fiscal year.
138.

According to TAGGS, Connecticut received nearly $5.5 billion in health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system.
139.

Cook County, through CCH, provides healthcare services to vulnerable Cook

County residents and received more than $500 million in Department funds in 2018. This figure
includes reimbursement for direct medical services as well as grant funding. These funds are
used to provide healthcare services to more than 300,000 Cook County residents, more than 65%
of whom are uninsured or underinsured and would otherwise lack meaningful access to medical
care.
140.

According to TAGGS, Delaware received over $1.7 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system. Delaware receives funds for its participation in Medicaid and
the Children’s Health Insurance Program, which it uses to provide a full range of health services
to over 240,000 citizens of the State. Delaware also receives Title X funding, including
$1,100,000 for the 2019 federal fiscal year in Title X family planning service grants. Title X
family planning clinics play a critical role in ensuring access to a broad range of family planning
and preventative health services.
141.

According to TAGGS, the District of Columbia received over $2.6 billion in

federal health care funding from the Department in the 2018 federal fiscal year for entities
identified as being at the state level in the TAGGS system.

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142.

According to TAGGS, Hawai‘i received over $2 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system.
143.

According to TAGGS, Illinois received over $15 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system. In December 2018, the Department’s Office for Civil Rights
sent a questionnaire to Illinois inquiring about federal health care funding that Illinois receives
from the Department in the context of religious objections.
144.

According to TAGGS, Maryland received over $8.6 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities as identified as being at
the state level in the TAGGS system.
145.

According to TAGGS, Massachusetts received over $12.4 billion in federal health

care funding from the Department in the 2018 federal fiscal year for entities as identified as
being at the state level in the TAGGS system.
146.

According to TAGGS, Michigan received more than $14.5 billion in health care

funding from the Department in the 2018 federal fiscal year for entities as identified as being at
the state level in the TAGGS system.
147.

According to TAGGS, Minnesota received over $9.4 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system.
148.

According to TAGGS, Nevada received over $2.6 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system. Nevada expects to spend over $6.7 billion on federal

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reimbursement for medical services through its two year budget, with significant additional
Department monies for additional services. Nevada uses these funds to provide numerous
services to its citizens that are wholly unrelated to what the Final Rule regulates. These
programs serve more than one million Nevadans. Medicaid funding alone amounts to 20% of
Nevada’s two year budget.
149.

According to TAGGS, New Jersey received $11.8 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system. Federal health care funds in New Jersey include over $7
billion in Department funding for Medicaid and the Children’s Health Insurance Program. New
Jersey uses these funds to provide a full range of health services to citizens of the State. For
example:
a. Through Medicaid and the Children’s Health Insurance Program alone, New
Jersey serves over 1.7 million people in the State.
b. New Jersey also received around $30.7 million in funding in the 2018 federal
fiscal year under the Older Americans Act, which allows older adults to live with
independence and dignity in community settings.
c. New Jersey received approximately $850.9 million to support individuals with
disabilities in the 2018 federal fiscal year. These funds allowed New Jersey to
provide services, education, or residential placement for nearly 25,000 adults
through more than 200 agencies across the State.
d. Federal funding also supports disease prevention, public health programs, opioid
addiction treatment, federally-qualified health centers, and emergency programs
throughout the State of New Jersey.

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150.

According to TAGGS, New Mexico received over $4.7 billion in federal health

care funding from the Department in the 2018 federal fiscal year for entities as identified as
being at the state level in the TAGGS system.
151.

According to TAGGS, New York received over $46.9 billion in federal health

care funding from the Department in the 2018 federal fiscal year for entities as identified as
being at the state level in the TAGGS system.
152.

New York City relies on billions of dollars in federal health care funding from the

Department.
a. H+H alone receives approximately $3.4 billion in federal health care funding that
is threatened should the Department determine that New York City’s laws, rules,
or policies do not comply with the Final Rule or related statutes. Specifically,
H+H receives: $5,933,864 for CHIP; $1,153,400,144 for Medicaid; $29,459,286
in federal grants related to HIV/AIDS, STD Treatment and Prevention, Substance
Abuse Treatment, Public Health and Prevention, Immunization, Biomedical and
Behavioral Research; $112,799,439 in other grants; $521,003,737 for DSH
(disproportionate share hospitals); $457,229,525 for UPL (upper payment limit);
and $1,114,354,374 for Medicare. This funding allows H+H to serve around one
million patients annually.
b. The NYC Department of Health and Mental Hygiene – one of the largest public
health agencies in the world – receives over $330 million in federal health care
funding from the Department. It uses this money to operate clinics and programs
that provide vaccinations, tuberculosis testing and treatment, and services for
sexually transmitted diseases and reproductive health.

65

153.

According to TAGGS, Oregon (including the Oregon Health Authority (“OHA”)

and the Oregon Department of Human Services) received over $8.1 billion in federal health care
funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system, including:
a. $5 billion in funding for Oregon’s Medicaid program (Oregon Health Plan) and
the Children’s Health Insurance Program combined, providing health coverage to
over 970,000 Oregon residents, over 400,000 of whom are children;
b.

Over $300 million in funding for public health and prevention programs used for
infectious disease screening and prevention, nutrition outreach and education, and
reduction and prevention of tobacco, alcohol, and opioid abuse; and

c. Federal grants for health care research and health care delivery. Other state
institutions of higher learning also receive HHS grants for biomedical research
and education.
d. The Oregon Department of Human Services received $966 million in Medicaid
Funds. Sixty-six percent of those funds represent services for older Americans
($638 million), serving 275,000 clients over the course of fiscal year 2018.
154.

According to TAGGS, Pennsylvania received over $21.8 billion in federal health

care funding from the Department in the 2018 federal fiscal year for entities identified as being at
the state level in the TAGGS system.
155.

According to TAGGS, Rhode Island received over $2.1 billion in federal health

care funding from the Department in the 2018 federal fiscal year for entities identified as being at
the state level in the TAGGS system. Rhode Island receives an annual amount of federal
funding totaling approximately $7,054,232 for programs for arthritis, asthma, cancer registry,

66

breast and cervical cancer, comprehensive cancer, colorectal cancer, diabetes, heart disease and
stroke, and screening for heart disease. The Rhode Island Department of Health was awarded
$2,725,000 in Title X funds for family planning program services for project period April 1,
2016 through August 31, 2018. The number of clients served by Title X service sites in 2018
was 29,098.
156.

According to TAGGS, Vermont received over $1.2 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system. The Vermont Department of Health has received
approximately $780,000 in Title X grants each year over the past ten years, with minor
fluctuations. The Vermont Department of Health is the sole Title X grantee for the State of
Vermont.
157.

According to TAGGS, Virginia received over $6.7 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system.
158.

According to TAGGS, Wisconsin received over $6.7 billion in federal health care

funding from the Department in the 2018 federal fiscal year for entities identified as being at the
state level in the TAGGS system.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
(Administrative Procedure Act – Exceeds Statutory Authority)
159.

Plaintiffs incorporate by reference the allegations set forth in each of the

preceding paragraphs of this Complaint.

67

160.

Under the Administrative Procedure Act, courts must “hold unlawful and set aside

agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2)(C).
161.

Defendants may only exercise authority conferred by statute. City of Arlington v.

FCC, 569 U.S. 290, 297-98 (2013).
162.

The Final Rule exceeds Defendants’ authority under the statutes it purports to

implement because the Final Rule legislates and implements excessively broad definitions of
statutory text, including “assist in the performance,” “health care entity,” and “discriminate or
discrimination.” 84 Fed. Reg. at 23,263-64.
163.

In addition, the Final Rule establishes an extraordinarily broad enforcement

scheme that would authorize the Department to withhold, deny, suspend, or terminate billions of
dollars in federal health care funds to the Plaintiffs if in Defendants’ determination there is a
failure to comply with the Final Rule or any of the underlying statutes. 84 Fed. Reg. at 23,27172. This enforcement scheme is not authorized by the relevant federal statutes.
164.

The Final Rule also establishes an enforcement scheme that would authorize the

Department to withhold or suspend all federal financial assistance from the Department of Labor
and Department of Education to the Plaintiffs if in Defendants’ determination there is a failure to
comply with the Final Rule or the Weldon Amendment. Id. This enforcement scheme is not
authorized by the relevant federal statutes.
165.

The Final Rule is therefore “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right,” in violation of the APA. 5 U.S.C. § 706(2)(C).
166.

Defendants’ violation causes ongoing harm to Plaintiffs and their residents.

68

SECOND CLAIM FOR RELIEF
(Administrative Procedure Act – Not in Accordance with Law)
167.

Plaintiffs incorporate by reference the allegations set forth in each of the

preceding paragraphs of this Complaint.
168.

Under the APA, a court must set “aside agency action” that is “not in accordance

with law.” 5 U.S.C. § 706(2)(A).
169.

The Final Rule violates Section 1554 of the Affordable Care Act, which prohibits

the Department from implementing any regulation that “(1) creates any unreasonable barriers to
the ability of individuals to obtain appropriate medical care; (2) impedes timely access to health
care services; (3) interferes with communications regarding a full range of treatment options
between the patient and the provider; (4) restricts the ability of health care providers to provide
full disclosure of all relevant information to patients making health care decisions; (5) violates
principles of informed consent and the ethical standards of health care professionals; or (6) limits
the availability of health care treatment for the full duration of a patient’s medical needs.” 42
U.S.C. § 18114.
170.

The Final Rule conflicts with the Medicaid and Medicare statutes it purports to

implement, which provide that with regard to informed consent, those statutes shall not “be
construed to affect disclosure requirements under State law.” 42 U.S.C. § 1396u-2(b)(3)(B)
(Medicaid managed care organization); see also 42 U.S.C. § 1395w-22(j)(3)(C)
(Medicare+Choice).
171.

The Final Rule violates the Emergency Medical Treatment and Labor Act

(“EMTALA”), which requires hospitals to provide emergency care. 42 U.S.C. § 1395dd.

69

172.

The Final Rule conflicts with Title VII of the Civil Rights Act of 1964, which

prohibits discrimination in employment based on religious beliefs, and further provides that
employers are not obligated to accommodate employees’ religious beliefs where the
accommodation would cause “undue hardship” on the employer. 42 U.S.C. § 2000e(j)
173.

The Final Rule is therefore “not in accordance with law” as required by the APA.

5 U.S.C. § 706(2)(A).
174.

Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
THIRD CLAIM FOR RELIEF
(Administrative Procedure Act – Arbitrary and Capricious)

175.

Plaintiffs incorporate by reference the allegations set forth in each of the

preceding paragraphs of this Complaint.
176.

The APA provides that courts must “hold unlawful and set aside” agency action

that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).
177.

The Final Rule is arbitrary and capricious because Defendants’ justification for its

decision runs counter to the evidence before the agency, relies on factors Congress did not intend
the agency to consider, and disregards material facts and evidence, including nationally
recognized standards of care for medical professionals.
178.

The Final Rule is arbitrary and capricious because its definitions of “assist in the

performance,” “discriminate or discrimination,” “health care entity,” and “referral or refer for,”
taken together, arbitrarily require Plaintiffs to guess whether routine procedures and services
would require additional steps to accommodate workers or protect patients, and unreasonably
ignore evidence in the rulemkaing record that these definitions create an unworkable situation for
Plaintiffs and other health care providers and regulators.

70

179.

The Final Rule is arbitrary and capricious because the Department conducted and

relied on a flawed cost-benefit analysis, citing benefits the Final Rule would confer without any
evidentiary basis, and failing adequately to account for the true costs the Final Rule will impose,
including the significant costs to Plaintiffs and to the public health and safety of their residents.
180.

The Final Rule is arbitrary and capricious because it fails to consider important

aspects of the problem, including the Rule’s interference with the administration of EMTALA
and Title VII.
181.

The Final Rule is therefore “arbitrary, capricious, [or] an abuse of discretion” in

violation of the APA. 5 U.S.C. § 706(2)(A).
182.

Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
FOURTH CLAIM FOR RELIEF
(U.S. Constitution art. I, § 8, cl. 1 – Spending Clause)

183.

Plaintiffs incorporate by reference the allegations set forth in each of the

preceding paragraphs of this Complaint.
184.

The Spending Clause of the Constitution does not permit the Department to “exert

a power akin to undue influence” over the Plaintiffs by attaching conditions to federal funds that
are “so coercive as to pass the point at which pressure turns into compulsion.” Nat’l Fed’n of
Indep. Bus. v. Sebelius, 567 U.S. 519, 578-88 (2012) (op. of Roberts, C.J.) (citations omitted).
185.

The Department’s threat to withhold, deny, suspend, or terminate billions of

dollars in federal health care funds to the Plaintiffs – as well as all funds appropriated under the
Departments of Labor, HHS, Education, and Related Agencies Appropriations Act, Pub. L. No.
115-245, Div. B, including funds entirely unrelated to health care – is unconstitutionally coercive
and violates the Spending Clause.

71

186.

The Spending Clause also requires that any conditions attached to the receipt of

federal funds must be unambiguous and clearly stated in advance, so that states and local
governments considering acceptance of those funds can do so knowingly and voluntarily. South
Dakota v. Dole, 483 U.S. 203, 207 (1987).
187.

The Final Rule is unconstitutionally vague and ambiguous, and attaches new

after-the-fact conditions to Plaintiffs’ receipt of federal funds, in violation of the Spending
Clause.
188.

The Spending Clause further requires that conditions placed on federal funds be

reasonably related to the purposes of the federal programs at issue. Id. at 213.
189.

The Final Rule unconstitutionally imposes conditions on Plaintiffs’ receipt of

federal funds that have no nexus to the purposes of those federal funding programs.
190.

Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
FIFTH CLAIM FOR RELIEF
(U.S. Constitution – Separation of Powers)

191.

Plaintiffs incorporate by reference the allegations set forth in each of the

preceding paragraphs of this Complaint.
192.

The Constitution vests the spending power in Congress, not the Executive Branch.

U.S. Const. art. I, § 8, cl. 1.
193.

Congress may delegate some discretion to the Executive Branch to decide how to

spend appropriated funds, but that discretion is cabined by the scope of the delegation. City of
Arlington, 569 U.S. at 297.

72

194.

The Executive Branch cannot amend or cancel appropriations that Congress has

duly enacted. Clinton v. City of New York, 524 U.S. 417, 439 (1998); Train v. City of New York,
420 U.S. 35, 38, 44 (1975).
195.

The Final Rule imposes requirements not authorized by the underlying federal

statutes and would allow Defendants to withhold, deny, suspend, or terminate federal financial
assistance for noncompliance with those requirements.
196.

The Final Rule’s conditions improperly usurp Congress’s spending power and

amount to an unconstitutional refusal to spend money appropriated by Congress, in violation of
constitutional separation of powers principles.
197.

Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
SIXTH CLAIM FOR RELIEF
(U.S. Constitution amend. I – Establishment Clause)

198.

Plaintiffs incorporate by reference the allegations set forth in each of the

preceding paragraphs of this Complaint.
199.

Laws that compel employers to “conform their business practices to the particular

religious practices of . . . employees” violate the Establishment Clause of the United States
Constitution. Estate of Thornton v. Caldor, 472 U.S. 703, 709 (1995).
200.

By requiring employers, including State and local governments, to accommodate

their employees’ religious beliefs to the exclusion of other interests, the Final Rule will impose
substantial burdens on third parties – including Plaintiffs’ other employees and patients – in
contravention of the First Amendment.
201.

Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
PRAYER FOR RELIEF

Wherefore, Plaintiffs respectfully request that this Court:
73

1.

Declare that the Final Rule is in excess of the Department’s statutory jurisdiction,

authority, or limitations, or short of statutory right within the meaning of 5 U.S.C. § 706(2)(C);
2.

Declare that the Final Rule is arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A);
3.

Declare that the Final Rule is unconstitutional;

4.

Vacate and set aside the Final Rule;

5.

Enjoin the Department and all its officers, employees, and agents, and anyone

acting in concert with them, from implementing, applying, or taking any action whatsoever under
the Final Rule;
6.

Stay the effective date of the Final Rule pursuant to 5 U.S.C. § 705;

7.

Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’

fees, pursuant to 28 U.S.C. § 2412; and
8.

Grant other such relief as this Court may deem proper.

74

DATED: May 21, 2019

Respectfully submitted,
LETITIA JAMES
Attorney General of the State of New York

Steven C. Wu
Deputy Solicitor General
Ester Murdukhayeva
Assistant Solicitor General
Of Counsel

By: /s/ Matthew Colangelo
Matthew Colangelo
Chief Counsel for Federal Initiatives
Lisa Landau, Chief, Health Care Bureau
Lilia Toson, Assistant Attorney General
Justin Deabler, Assistant Attorney General
Brooke Tucker, Assistant Attorney General
Amanda Meyer, Assistant Attorney General
Office of the New York State Attorney
General
28 Liberty Street
New York, NY 10005
Phone: [phone]
[e-mail]
Attorneys for the State of New York

ZACHARY W. CARTER
Corporation Counsel of the City of New York

PHILIP J. WEISER
Attorney General of the State of Colorado

By: /s/ Tonya Jenerette
Tonya Jenerette
Deputy Chief for Strategic Litigation
Cynthia Weaver, Senior Counsel
Otis Comorau, Assistant Corporation Counsel
100 Church Street, 20th Floor
New York, NY 10007
Phone: [phone]
[e-mail]
[e-mail]
[e-mail]

By: /s/ Jennifer L. Weaver
Eric R. Olson
Solicitor General
Jennifer L. Weaver
First Assistant Attorney General
W. Eric Kuhn
Senior Assistant Attorney General
1300 Broadway, 10th Floor
Denver, CO 80203
Phone: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for the City of New York

Attorneys for the State of Colorado

75

WILLIAM TONG
Attorney General of Connecticut

KATHLEEN JENNINGS
Attorney General of Delaware

By: /s/ Maura Murphy Osborne
Maura Murphy Osborne
Assistant Attorney General
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Phone: [phone]
[e-mail]

AARON R. GOLDSTEIN
Chief Deputy Attorney General
ILONA KIRSHON
Deputy State Solicitor

Attorneys for the State of Connecticut

By: /s/ David J. Lyons
David J. Lyons*
Deputy Attorney General
Delaware Department of Justice
Phone: [phone]
Fax: [phone]
[e-mail]
Attorneys for the State of Delaware

KARL A. RACINE
Attorney General
District of Columbia
By: /s/ Robyn R. Bender
Robyn R. Bender*
Deputy Attorney General
Valerie M. Nannery*
Assistant Attorney General
Office of the Attorney General for
the District of Columbia
441 4th Street, N.W., Suite 630 South
Washington, DC 20001
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

CLARE E. CONNORS
Attorney General of the State of Hawai‘i
By: /s/ Diane K. Taira
Diane K. Taira,* Supervising Deputy
Attorney General, Health Division
Jill T. Nagamine,* Deputy Attorney General
Andrea J. Armitage,* Deputy Attorney
General
Department of the Attorney General
State of Hawai‘i
425 Queen Street
Honolulu, Hawai‘i 96813
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for the District of Columbia
Attorneys for the State of Hawai‘i

76

KWAME RAOUL
Attorney General of the State of Illinois

BRIAN E. FROSH
Attorney General of Maryland

By: /s/ Sarah Gallo
Sarah Gallo,* Assistant Attorney General
Lauren Barski,* Assistant Attorney General
100 West Randolph Street, 12th Floor
Chicago, IL 60601
Phone: [phone]
[e-mail]

By: /s/ Steve M. Sullivan
Steve M. Sullivan
Solicitor General
Kimberly S. Cammarata
Jeffrey P. Dunlap
Assistant Attorneys General
200 St. Paul Place
Baltimore, MD 21202
Phone: [phone]
Fax: [phone]

Attorneys for the State of Illinois

Attorneys for the State of Maryland
MAURA HEALY
Attorney General of the Commonwealth of
Massachusetts

DANA NESSEL
Attorney General
State of Michigan

By: /s/ Abigail Taylor
Abigail Taylor*
Jon Burke*
Assistant Attorneys General
Civil Rights Division
Massachusetts Attorney General’s Office
One Ashburton Place
Boston, MA 02108
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

By: /s/ Fadwa A. Hammoud
Fadwa A. Hammoud* (P74185)
Solicitor General
Toni L. Harris* (P63111)
Assistant Attorney General
Michigan Department of Attorney General
P.O. Box 30758
Lansing, MI 48909
Phone: [phone]
[e-mail]
[e-mail]
Attorneys for the State of Michigan

Attorney for the Commonwealth of
Massachusetts

77

KEITH ELLISON
Attorney General
State of Minnesota

AARON D. FORD
Attorney General
State of Nevada

By: /s/ Scott H. Ikeda
Scott H. Ikeda*
Assistant Attorney General
Atty. Reg. No. 0386771
445 Minnesota Street, Suite 1100
St. Paul, Minnesota 55101-2128
Phone: [phone]
Fax: [phone]
[e-mail]

By: /s/ Heidi Parry Stern
Heidi Parry Stern (Bar No. 8873)
Solicitor General
Craig A. Newby (Bar No. 8591)
Deputy Solicitor General
Office of the Nevada Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, NV 89101
[e-mail]

Attorneys for the State of Minnesota

Attorneys for the State of Nevada

GURBIR S. GREWAL
Attorney General
State of New Jersey

HECTOR BALDERAS
Attorney General of New Mexico

By: /s/ Glenn Moramarco
Glenn Moramarco*
Assistant Attorney General
Melissa Medoway,* Deputy Attorney General
Marie Soueid,* Deputy Attorney General
Deputy Attorneys General
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625
Phone: [phone]
[e-mail]
[e-mail]
[e-mail]

By: /s/ Tania Maestas
Tania Maestas
Chief Deputy Attorney General
P.O. Drawer 1508
Santa Fe, New Mexico 87504-1508
[e-mail]
Attorneys for the State of New Mexico, by and
through Attorney General Hector Balderas

Attorneys for the State of New Jersey

78

ELLEN F. ROSENBLUM
Attorney General of the State of Oregon
By: /s/ Brian A. de Haan
Brian A. de Haan (NY Bar #4565396)
Elleanor H. Chin* (OR#061484)
Senior Assistant Attorneys General
Oregon Department of Justice
1162 Court Street NE
Salem Oregon 97301
Phone: [phone]
[e-mail]
Attorneys for the State of Oregon

JOSH SHAPIRO
Attorney General of the Commonwealth of
Pennsylvania
By: /s/ Aimee D. Thomson
Aimee D. Thomson (NY Bar #5404348)
(admission to S.D.N.Y. pending)
Deputy Attorney General, Impact Litigation
Section
Nikole Brock
Deputy Attorney General, Health Care
Section
Pennsylvania Office of Attorney General
1600 Arch St., Suite 300
Philadelphia, PA 19103
Phone: [phone]
[e-mail]
Attorneys for the Commonwealth of
Pennsylvania

PETER F. NERONHA
Attorney General of the State of Rhode Island

THOMAS J. DONOVAN, JR.
Attorney General of the State of Vermont

By: /s/ Michael W. Field
Michael W. Field
Assistant Attorney General
150 South Main Street
Providence, Rhode Island 02903
Phone: [phone], ext. 2380
[e-mail]

By: /s/ Eleanor Spottswood
Eleanor Spottswood*
Assistant Attorney General
Office of the Attorney General
109 State Street
Montpelier, VT 05609-1001
Phone: [phone]
[e-mail]

Attorneys for the State of Rhode Island
Attorneys for the State of Vermont

79

MARK R. HERRING
Attorney General of the Commonwealth of
Virginia

JOSHUA L. KAUL
Attorney General
State of Wisconsin

By: /s/ Toby J. Heytens
Toby J. Heytens
Solicitor General
Matthew R. McGuire
Principal Deputy Solicitor General
Michelle S. Kallen
Deputy Solicitor General
Brittany M. Jones*
John Marshall Fellow
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
Phone: [phone]
[e-mail]

By: /s/ Maura FJ Whelan
Maura FJ Whelan*
Assistant Attorney General
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
Phone: [phone]
[e-mail]
Attorneys for State of Wisconsin

Attorneys for the Commonwealth of Virginia
KATHLEEN HILL
Acting Corporation Counsel of the City of
Chicago
By: /s/ Stephen Kane
Stephen Kane,* Acting Deputy
Rebecca Hirsch, Assistant Corporation
Counsel
Affirmative Litigation Division
City of Chicago Department of Law
121 N. LaSalle Street, Room 600
Chicago, IL 60602
Phone: [phone]
[e-mail]
Attorneys for the City of Chicago

KIMBERLY M. FOXX
Cook County Illinois State’s Attorney
By: /s/ Kimberly M. Foxx
Kimberly M. Foxx,* Cook County State’s
Attorney
Amy Crawford,* Assistant State’s Attorney
Deputy Bureau Chief – Civil Actions Bureau
Jessica M. Scheller,* Assistant State’s
Attorney
Division Chief; Advice, Business & Complex
Litigation – Civil Actions Bureau
500 W. Richard J. Daley Center Place, Suite
500
Chicago, IL 60602
Phone: [phone]
Phone: [phone]
[e-mail]
[e-mail]
Attorneys for Cook County, Illinois

*Motion to appear pro hac vice forthcoming.

80