Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FOR IMMEDIATE RELEASE: 
May 28 2019

Lawsuit filed in Spokane Unprecedented rule puts provider beliefs ahead of patient needs

SPOKANE — Attorney General Bob Ferguson today filed a lawsuit challenging the Trump Administration’s “conscience rule,” which gives health care professionals broad discretion to refuse lawful and medically necessary care to patients for religious or moral reasons, even when the patient’s life is at risk.

The lawsuit, filed in U.S. District Court for the Eastern District of Washington, argues that the rule, if implemented, would jeopardize access to reproductive health care, particularly for low-income, rural and working poor patients and allow providers to discriminate against LGBTQ individuals.

The Trump Administration’s sweeping new rule allows health care workers to deny a patient access to medical care and services — including reproductive care, end-of-life decisions, and care for transgender patients — for moral or religious reasons, with no exception for medical emergencies. If the federal government believes Washington, its health care institutions, or other recipients of federal health care funds have violated the rule, it may cut off all health care funding to the state — more than $10 billion per year.

Ferguson filed the lawsuit in federal court in Spokane because rural communities, including those in Eastern Washington, have fewer health care providers and are more likely to be harmed by the rule.

 “All Washingtonians deserve to receive the full range of health care services,” Ferguson said. “This new rule will illegally and disproportionately harm rural and working poor Washington families, who have no alternatives to their local health care providers.”

“Once again, the Trump Administration is attacking health care for millions of women and LGBTQ people — and once again Washington state is fighting back,” Gov. Jay Inslee said. “Our state stands firmly against this administration’s unlawful and unconscionable policy, which puts millions at risk of being denied legal and medically appropriate care. We will not allow this reckless administration to promote discrimination in doctor’s offices or put health care out of reach for those who need it.”

“The Trump Administration’s ‘conscience’ rule is an open license to discriminate,” said Monica Harrell, Equal Rights Washington board chair. “These impacts will be felt most in LGBTQ communities, within communities of color, and amongst those who are lower income. A car accident victim could be denied life-saving care because they are married to someone of the same sex. Health care will be compromised, families will be broken and people will die.”

Ferguson’s lawsuit asserts the rule violates the Administrative Procedure Act, the Affordable Care Act and the U.S. Constitution.

The conscience rule

On May 21, the U.S. Department of Health and Human Services issued the “conscience rule,” a broad, unprecedented expansion of nearly 30 federal statutes that apply to health care providers and organizations that receive funding from the federal government. It is scheduled to go into effect on July 20.

The Trump Administration’s new rule favors providers’ religious and moral views over guaranteed access to timely treatment in line with today’s standards of care. The new rule gives individual providers, medical institutions, insurers and employers broad discretion to delay or refuse necessary care on religious or moral grounds.

The rule significantly expands the number of individuals eligible to make refusals based on religious or moral beliefs. The rule applies to any employee providing any service to any patient, from ambulance drivers to receptionists to customer service representatives at insurance companies.

Some examples of potential impacts under the rule:

  • A woman experiencing a life-threatening miscarriage calls an ambulance to her home. The EMT or paramedic who arrives could refuse to transport her to the hospital because they may terminate the pregnancy, despite the risk to the health of the mother and the fact that the pregnancy is not viable.
  • A patient in need of an IUD to treat a condition such as endometriosis could be denied coverage by her insurance company on moral grounds because an IUD is also birth control. The patient would be responsible for the entire cost of her treatment.
  • A patient who suffers debilitating pain with menstruation, or constant menstruation, could be cured with a surgery to remove her uterus. Her doctor could refuse to tell her about that option if he or she personally opposed sterilization.
  • An employer could offer unmarried employees only health coverage that does not cover birth control, or choose to provide only plans that do not cover birth control at all.
  • A receptionist, citing religious or moral objections, could refuse to schedule an appointment for an LGBTQ patient.
  • A pharmacist could refuse to fill a prescription for hormone therapy for a transgender person.
  • If a doctor who objects to physician-assisted suicide on religious grounds treats a patient with a painful, terminal disease who wants to use Washington’s Death with Dignity Act, the doctor may refuse to transfer that patient’s medical records to a participating provider.

Impacts on Washington

The rule threatens severe sanctions on states that do not comply with the rule. The rule puts at risk all federal health care funding to states for any failure — or apparent failure — to comply with the rule.

This jeopardizes sources of funding that states rely on to provide critical and often life-saving health care, including the $8.2 billion Washington receives annually for its Medicaid and Children’s Health Insurance programs. Washington receives over $10.5 billion every year in federal funding from the U.S. Department of Health and Human Services. Washington relies on those funds for essential public health programs, including the Children’s Health Insurance Program, HIV/AIDS and STD prevention and education, and substance abuse and mental health treatment. 

The rule provides no information on how the federal government will determine the rule has been violated. It does, however, note that if any recipient of federal health care funding passed through by the state, such as a Title X clinic, is found to have violated the rule, the state is responsible.

The rule disproportionately harms rural and low-income patients. In areas where there are few medical options, a patient may have no choice but to go to a health care provider or institution that may refuse to provide care the patient needs. Low-income patients in particular may not be able to travel or shop for another provider.

It substantially increases the risk of discrimination against patients on the basis of sex, sexual orientation, or gender identity. Transgender patients already face discrimination in the health care industry, including denial of routine medical care, like physicals, diabetes treatments and flu shots. The rule would give providers more leeway to refuse to provide care to transgender patients and discriminate based on gender identity.

Washington law balances conscience rights and patient care

Washington has a network of laws that balances patient’s right to health care treatment with respect for personal conscience. These laws allow medical professionals to refuse to provide certain services based on conscience, except in an emergency to save a human life. They also require health care institutions and providers to ensure that no one is denied information about or timely access to health care, by, for example, advising patients of all options required by today’s medical standards.

Under one of these laws, Washington’s informed consent statute, health care institutions must inform patients about the full range of treatment options, even if performing the treatment is contrary to the religious views of the institution.

Under Washington’s charity care law, an institution cannot transfer a patient who needs emergency care unless at the patient’s request or the hospital has limited medical resources.

State regulations also require pharmacies to fill all lawful prescriptions to patients in a timely manner. Pharmacies are required to accommodate the conscience objections of individual pharmacists, but a pharmacy may not disregard its own legal obligations because of a religious objection.

Another Washington law requires hospitals to provide accurate and unbiased information to victims of sexual assault about emergency contraception and provide such contraception immediately upon request.

Under the Trump Administration’s new conscience rule, Washington cannot enforce any of these laws without jeopardizing billions of dollars in federal health care funding. The new rule overrides Washington’s laws that protect this balance of rights and patient access to necessary care.

For example, Washington law currently prevents a hospital from turning away a patient experiencing a miscarriage and in need of immediate treatment to prevent infection, sepsis, and even death. Under the new rule, however, the patient’s local hospital could refuse to admit her if it opposed pregnancy terminations on religious grounds.

Legal case

Ferguson’s lawsuit argues that the rule violates the Administrative Procedure Act in two ways. First, the rule is arbitrary, capricious and an abuse of discretion. Second, the rule violates several federal laws.

The rule also violates the Affordable Care Act, which expressly bars the U.S. Department of Health and Human Services from adopting regulations that deny patients timely access to medical care, interfere with provider patient communications, or undermine informed consent or medical ethics.

The rule is unconstitutional because it elevates certain religious beliefs above all other interests, including patient health and choices, and financially coerces the state into adopting preferred federal policies.

The lawsuit asks the court to strike down the rule.

Contact Attorney General’s Office

If you were denied important medical information or health care because of the religious or moral objections of a health care worker, please contact the Attorney General’s Office at ConscienceRule@atg.wa.gov.

Assistant Attorneys General Jeff Sprung, Martha Rodriguez Lopez, Zach Jones, Jeffrey Grant and July Simpson are handling the case for Washington.

Attorney General Ferguson has previously taken on the Trump Administration in an effort to protect reproductive rights. In March, Ferguson filed a lawsuit challenging the Trump Administration “gag rule” impacting family planning providers. A federal judge blocked the rule nationwide before its effective date. Last year, Ferguson filed a lawsuit to block the Administration’s rules undermining access to contraception. Two federal judges temporarily halted the rules’ implementation in separate cases across the nation.

Ferguson has filed 38 lawsuits against the Trump Administration and has not lost a case. Ferguson has 22 legal victories against the federal government since President Trump assumed office. Twelve of those cases are finished and cannot be appealed. The Trump Administration has appealed or may appeal the other 10, which include lawsuits involving Dreamers and 3D-printed guns.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts:

Brionna Aho, Communications Director, (360) 753-2727; Brionna.aho@atg.wa.gov