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'Patients Will Die': One County's Challenge To Trump's 'Conscience Rights' Rule

12 hours ago
Originally published on June 11, 2019 6:06 pm

Moral and religious objections to providing health care sometimes arise in medicine: A medical assistant might not agree with blood transfusions. A nurse might not want to assist in sex reassignment surgery.

Last month, the U.S. Department of Health and Human Services put out a new rule that "implements full and robust enforcement" of existing laws that protect what the administration calls "conscience rights" for health care workers. The rule is set to go into effect on July 22.

As NPR has previously reported, the new rule expands the kinds of workers who are covered by those laws — to include, for example, reception and billing staff. Even though relatively few of these complaints get submitted to HHS each year, this emphasis on religious freedom has been a hallmark of the department under the Trump administration.

HHS was sued right away over the expansiveness of its new rule — by the states of New York and California and by physician groups, clinics and others.

Santa Clara County in California is asking a federal judge in U.S. District Court, Northern District of California this week to put the Trump rule on hold while the legal process plays out San Francisco and the state of California filed separate motions for preliminary injunctions last week.

To succeed in putting a temporary stop on the rule, at least one of the plaintiffs will need to convince a judge that implementing the rule would cause "irreparable harm."

So what's the harm of a rule designed to affirm health workers' right to exclude themselves from providing medical care that they say violates their religious or moral beliefs?

"If the rule goes through as it's written, patients will die," says Santa Clara's county executive, Jeff Smith, who is a physician as well as an attorney by training.

"We will have a guaranteed situation where a woman has had a complication of an abortion, where she's bleeding out and needs to have the services of some employee who has moral objections," Smith predicts. "That patient will die because the employee is not providing the services that are needed."

Santa Clara has 2 million residents — it is more populous than 14 states, according to 2017 census data. The county runs three hospitals, including a Level 1 trauma center, clinics and pharmacies, all of which rely in part on federal funding to operate.

The issue is not whether employees who have moral objections to providing certain kinds of care should have a way to opt out, according to James Williams, county counsel for Santa Clara. The county already has a policy to deal with that, but it differs from the federal rule in two key ways.

"One: Health care providers need to notify us in advance," Williams says. "It can't just be an on-the-fly objection. And that makes sense because, how are you supposed to run a hospital if you don't know what your staff has a concern about until the actual procedure needs to happen? And second: There's an exception for dealing with an emergency situation."

HHS declined to offer comment for this story, because litigation regarding its rule is ongoing. But the department summarized and responded to nearly a quarter-million comments that were submitted during the 60-day public comment period after the rule was first proposed in January 2018.

In response to commenters who raised the emergency issue, HHS said its final rule does not explicitly conflict with federal laws that require health workers to provide emergency treatment for any and all patients.

To this, Santa Clara County counsel Williams responds, "What the [federal] rule doesn't do is actually say that it doesn't apply in emergencies."

If the conscience rule does go into effect, and Santa Clara does not comply with it, the federal funding the county relies on to operate its public health system could be withheld or subject to "funding claw-backs to the extent permitted by law," according to the HHS rule.

On the other hand, Williams says, if the county attempted to comply with the rule, it would have another problem — figuring out how.

"HHS didn't explain or consider how this rule would actually be implemented in practice," Williams says. "The rule kind of suggests that, basically, you need to have extra staffing to accommodate the fact that there may be people who have objections. That would be very costly."

County officials worry more broadly about the direct impact of the federal rule on patients. In the lawsuit, Santa Clara argues that the rule could delay care, which could, among other things, open the county up to malpractice suits.

And, county officials add, posting notice about the "conscience rights" policy, as the HHS rule instructs, in "a prominent and conspicuous physical location" within hospitals and clinics that receive federal funding could scare away vulnerable patients — including women seeking abortions or transgender patients.

To this last point, HHS wrote in its rule: "The Department disagrees that a notice of federal conscience and anti-discrimination laws would in any way discourage a patient seeking emergency treatment."

This is not the first time Santa Clara County has sued the Trump administration — the county also sued over Trump's attempts to undermine DACA and over the administration's legal threats against sanctuary cities.

The county has had its eye on the conscience rights issue since the rule was proposed in 2018. When the final rule came down in May 2019, Santa Clara was ready to go.

"We have, as a county, more flexibility to litigate because we have a county Board of Supervisors that's very supportive of patients' rights," says Smith, the county executive. "But every county, every public health system, will have the same concerns."

Trump administration officials say the federal rule is necessary to protect health workers' religious freedom. As NPR has reported, Roger Severino, the director of HHS's Office for Civil Rights, has made the right of health workers to refuse to offer care for religious reasons to some patients his signature issue. In a statement sent to NPR, Severino vowed to "defend the rule vigorously."

The next step: A judge in U.S. District Court will decide whether any of the California plaintiffs pass the test for preliminary injunctive relief — that if the rule goes into effect, they will suffer "irreparable harm."

If any or all plaintiffs pass that test, the judge could put the rule on hold while the lawsuits play out. Currently, challenges to the rule in New York and San Francisco are both scheduled for hearings on July 12 — just days before the federal rule is set to go into effect.

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Yesterday, we heard from an inmate in Alabama named David Crenshaw. He's been in prison for 26 years. He told us, in all those years, inmates never felt as unsafe as they do now.

DAVID CRENSHAW: We never just felt like our life being in danger the way it is today. Basically, everybody incarcerated feels in danger.

CORNISH: It's not just feeling in danger. Between 2015 and 2017, there were nearly two dozen homicides in Alabama's prisons. That's according to the U.S. Justice Department. It issued a report this year that found understaffed prisons rife with drugs, weapons and violence. Facing the threat of a federal lawsuit, the Alabama Department of Corrections released a plan it says will turn things around.

JEFF DUNN: Our goal here is for this to be an Alabama solution to this problem.

CORNISH: That's Commissioner Jeff Dunn. He's head of Alabama's prison system. Dunn's strategic plan calls for building more prisons to reduce overcrowding, providing leadership training to senior prison staff, hiring more officers and paying them more.

The plan also includes a proposal to introduce rehabilitative programs for inmates. That's something David Crenshaw, the inmate, says used to exist. He thinks one reason why the prisons have grown so violent is that programs like work crews, recreational sports and mental health classes have been cut. We played some of his interview for Jeff Dunn.

CRENSHAW: Today, it's no meaningful outlet in here. It's just like these guys being thrown up in here. They have, basically, nothing to do, just sitting awhile with idle time on their hands. And of course, you know, the person fitting in and whether the person's fitting in - and it always come out with a violent outcome, seems like.

CORNISH: Commissioner Dunn, can you talk about this idea of what's happened to rehabilitative programming?

DUNN: Well, I think, unfortunately, it's directly linked back to our ability to staff our facilities because any of the rehabilitative programs that we provide require staff. And we simply have not been able, in the last many years, to staff these facilities to the levels that we need.

I think the other piece of that is that we have not had the capacity, with respect on the infrastructure side, to have the classrooms that we need, the technology that we need, things like this to give inmates productive things to do with their time. Our infrastructure simply does not provide for that right now.

CORNISH: I want to turn to another section of your report - culture. And the inmate we spoke with said he viewed officers - corrections officers as operating as though they're just another gang in prison. And this tracks with some of the findings in the DOJ report. It found that the Department of Corrections employees were a main source of drugs in prisons. How are you going to address this?

DUNN: Certainly, we recognize that we have, on the negative side, issues. That's why we initiated, several years ago, a corruption task force that has, as its primary mission, to find and investigate. And we're indicated to prosecute staff that are not abiding by our values and sometimes actually breaking the law. We initiated an inspector general process by which we inspect our facilities. And one of the things that that process looks at is the culture inside the facility.

CORNISH: But can I just ask - you know, back in 2015, there were some 10 prison wardens who were reassigned, people who had been under scrutiny for violent conditions. They were just sent to other prisons. This was just before you took over. Was that a mistake by the state, and what are you going to do differently this time around?

DUNN: Well, I can't speak to those decisions. I'm familiar with...

CORNISH: But these - means these wardens were still working in the system, right? I mean, even if you didn't make the decision to reassign, they're still working.

DUNN: Right, and I don't - I'm not disagreeing with you that they're still working, but I am suggesting that we are instituting new standards for our wardens. And if you look, several of those wardens are no longer with us. This is a problem that - overall with the department that's been in the making for over 30 years. And we are what we believe to be taking some very actionable steps towards addressing the problem. And as we get resources applied, then it'll increase the speed and intensity with which we can address those problems. And we're attacking them on all fronts.

CORNISH: Commissioner Dunn, you are a former Air Force colonel. You know a thing or two about working within an institution. Is the culture of the Alabama prison system too far gone to fix?

DUNN: No. I don't believe that. I think that we have a leadership team right now that's been assembled that is experienced.

CORNISH: But you came into office after a commissioner had to resign because of a federal investigation. And here you are again, right? Only now, it's under your tenure.

DUNN: Well, I - just to your point of this - whether it's too far gone - no. I would not be as committed and continue to serve in this capacity if I felt like it was too far gone. I think we have an actionable road map that we can use. We've got support from the legislature. We certainly have support from the executive branch. So all of these partners have come to the table to say, this is something that, if we work hard and roll up our sleeves, we can actually make a positive difference and reform and transform this department.

CORNISH: Commissioner Jeff Dunn, thank you so much for speaking with us.

DUNN: Thank you, Audie. It was a pleasure to be with you.

CORNISH: Jeff Dunn, commissioner of the Alabama Department of Corrections. He was talking about the department's new plan to curb violence in the state's prisons. Transcript provided by NPR, Copyright NPR.