The city of San Francisco is striking back at the Trump administration over a new rule that will allow healthcare workers to refuse care based on religious or moral objections.
City Attorney Dennis Herrera today announced he had filed suit (PDF) against the Department of Health and Human Services (HHS) to invalidate a new federal "conscience rights" rule. In it, he argues the rule is unconstitutional and would increase discrimination in health care while threatening nearly $1 billion in the city's healthcare funding.
The final rule, issued by the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) on May 2, will take effect 60 days after publication in the Federal Register.
The rule is intended to protect individuals and healthcare entities from discrimination on the basis of their exercise of conscience in HHS-funded programs. It will grant protections to healthcare workers who refuse to provide services, such as abortion or transition-care for transgender individuals, based on religious or moral objections.
If allowed to take effect, the rule would reduce access to health care, particularly for women; lesbian, gay, bisexual, or transgender people; and other medically and socially vulnerable populations, the City Attorney's office said in a press release.
In the lawsuit, filed today in U.S. District Court for the Northern District of California, Herrera says that HHS has exceeded its statutory authority by creating its so-called “conscience” rule and violated the Administrative Procedure Act, the spending clause, separation of powers principles, and other provisions of the U.S. Constitution.
“At its core, this rule is about denying people medical care,” Herrera said in a statement. “This administration is willing to sacrifice patients’ health and lives — particularly those of women, members of the LGBTQ community, and low-income families — to score right-wing political points. It’s reprehensible. People’s health should not be a political football. The intent of this new rule is clear: it’s to prioritize religious beliefs over patient care, thereby undermining access to contraception, abortion, HIV treatment and a host of other medical services. We are not going to let the Trump administration push our country back to 1940s health care.”
The new rule requires cities like San Francisco — in all circumstances — to prioritize a staff person’s religious beliefs over the health and lives of patients, according to Herrera.
"The rule is so broad it applies not just to doctors and nurses, but anyone even tangentially related to health care, like receptionists," the City Attorney's office said.
Schedulers, for example, could refuse to schedule appointments for LGBTQ patients or a woman seeking information about abortion, "with potentially devastating impacts on the patients’ health or lives," he said.
If San Francisco sought to address the situation by transferring the staff person to another assignment so their professional role did not conflict with their personal beliefs, that could be considered “discrimination” against the staffer under the new federal rule, Herrera said.
If San Francisco refuses to comply with the new rule, it risks losing nearly $1 billion in federal money that funds everything from Medicaid and Medicare to HIV treatment to assistance for low-income families and foster children.
“Threatening the health of women, seniors, and the sick doesn’t demonstrate strength or conviction. It’s simply craven,” Herrera said. “Rather than protecting civil rights, this new rule makes a mockery of them. Once again, the Trump administration is trying to bully local governments by threatening to withhold federal funds. That’s not how American democracy works. The president does not have that authority under the Constitution. I would have hoped the Trump administration, after all of their losses in court, would have learned that lesson by now.”
According to Herrera, San Francisco already has a policy where medical staff can request not to participate in a procedure on moral, religious or ethical grounds.
The individual’s supervisor must determine if the staff member’s request for accommodation negatively affects the quality of the patient’s care. If the patient’s needs do not allow for the substitution of personnel, the supervisor must inform the staff member to stay at their post until other competent personnel can be provided. If possible, accommodations are made, which may include transferring individuals to another area where they will not be called on to perform the task they find objectionable.
Herrera’s lawsuit seeks to have the new rule declared unconstitutional. It also seeks a court order preventing the new rule from taking effect. The lawsuit names as defendants the U.S. Department of Health and Human Services; Health and Human Services Secretary Alex Azar; and the director of the department’s Office for Civil Rights, Roger Severino.