City & Cnty. of S.F. v. Azar, No. C 19-02405 WHA Related to No. C 19-02769 WHA

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: William Alsup, United States District Judge
• Citation: 411 F.Supp.3d 1001
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, v. Alex M. AZAR II, Secretary of U.S. Department of Health and Human Services; Roger Serverino, Director, Office for Civil Rights, Department of Health and Human Services; U.S. Department of Health and Human Services; and Does 1–25, Defendants.
• Decision Date: 19 November 2019
• Docket Number: No. C 19-02916 WHA,No. C 19-02405 WHA Related to No. C 19-02769 WHA

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CITY AND COUNTY OF SAN FRANCISCO, Plaintiff,
v.
Alex M. AZAR II, Secretary of U.S. Department of Health and Human Services; Roger Serverino, Director, Office for Civil Rights, Department of Health and Human Services; U.S. Department of Health and Human Services; and Does 1–25, Defendants.

No. C 19-02405 WHA Related to No. C 19-02769 WHA
No. C 19-02916 WHA

United States District Court, N.D. California.

Signed November 19, 2019

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Jaime Marie Huling Delaye, Ronald P. Flynn, San Francisco City Attorney's Office, Sara Jennifer Eisenberg, Dennis J. Herrera, Yvonne Rosil Mere, San Francisco, CA, for Plaintiff.

Benjamin Thomas Takemoto, Rebecca M. Kopplin, Vinita Andrapalliyal, U.S. Department of Justice, Washington, DC, John Paul Phillips, Paul Hastings LLP, San Francisco, CA, for Defendants.

ORDER RE MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND REQUESTS FOR JUDICIAL NOTICE

William Alsup, United States District Judge

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INTRODUCTION

In these challenges to a final agency rule allowing those with religious, moral, or other conscientious objections to refuse to provide abortions and certain other medical services, federal defendants move to dismiss or, in the alternative, for summary judgment. Plaintiffs oppose and also move for their own summary judgment. For the following reasons, defendants' motion to dismiss is DENIED . To the extent stated below, plaintiffs' motion for summary judgment is GRANTED .

STATEMENT

Following Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), at least one religiously affiliated hospital became forced by a court to allow its facilities to be used for abortion procedures. See, e.g. , Taylor v. St. Vincent's Hospital , 369 F. Supp. 948 (D. Mont. 1973). That provoked the first federal statute to ensure that federally-financed hospitals as well as doctors, among others, could refuse to perform such procedures on grounds of conscientious objection. Over the years, the right to refuse on such grounds has received yet more attention in further contexts via federal statutes. Defendant United States Department of Health and Human Services (HHS) has recently promulgated a rule that, plaintiffs say, expands these protections beyond what Congress intended and will hamstring the delivery of health care. Plaintiffs fear losing important federal grants as a result of their inability to comply with the new rule.

Under the new rule, to preview just one example, an ambulance driver would be free, on religious or moral grounds, to eject a patient en route to a hospital upon learning that the patient needed an emergency abortion. Such harsh treatment would be blessed by the new rule. One important question presented herein is the extent to which such scenarios conflict with the underlying statutes themselves. Although this order does not accept all of plaintiffs' criticisms, this order holds that the new rule conflicts with those statutes in a number of ways and upsets the balance drawn by Congress between protecting conscientious objections versus protecting the uninterrupted effective flow of health care to Americans.

1. HISTORY OF CONSCIENCE STATUTES.

Starting in 1973, Congress enacted laws providing certain protections to doctors and others who objected to performing abortions and certain other procedures. Relevant for our purposes are the following: (1) the Church Amendment; (2) the Coats-Snowe Amendment; (3) Medicaid and Medicare Advantage law; (4) the Weldon Amendment; and (5) the Patient and Affordable Care Act. Since the new rule purports to interpret these statutes, let's review them.

A. Church Amendment (1973).

Senator Frank Church of Idaho will be remembered by many for his opposition to the Vietnam War, his hearings exposing

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abuse by CIA surveillance of American citizens, and his championing of wilderness and environmental causes. For our immediate purposes, however, we remember him for the Church Amendment.

Following Roe v. Wade , as stated, a Montana district court issued a temporary injunction requiring a Catholic hospital to allow its facilities to be used for sterilization, specifically, a tubal ligation procedure. Taylor , 369 F. Supp. at 948. Senator Church stated the purpose of his amendment was, among other things, to clarify the intent of Congress as to "physicians, nurses, or institutions" who don't perform "abortions or sterilization in religious affiliated hospitals where such operations are contrary to religious belief." 119 Cong. Rec. 9595–97.

The Church Amendment provided that the receipt of federal funds by any individual or entity did not authorize any court or public official to require such individual to perform or assist in the performance of any sterilization procedure or abortion contrary to his religion or conscience, nor to require such entity to make its facilities available for sterilization or abortion if such procedure was prohibited by the entity on the basis of religious or moral convictions. Entities receiving federal funds were barred from discriminating "in the employment, promotion, or termination of employment" of physicians or health care personnel as well as from discriminating "in the extension of staff or other privileges" to physicians or "health care personnel" based upon their conscientious refusal to perform or assist in the performance of those procedures. The amendment also provided that "[n]o individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions." 42 U.S.C. § 300a-7. The statute gave no delegation of authority to any agency to issue legislative rules (or even interpretive rules, for that matter).

B. Coats-Snowe Amendment (1996).

Twenty-three years passed. No agency rule issued or was even proposed. In 1996, however, a new concern surfaced, namely that medical students felt coerced into learning how to perform abortions. Still, no agency acted — but Congress did act. A 1996 amendment drew sponsorship from Senators Olympia Snowe and Dan Coats. Until her recent retirement, Senator Snowe of Maine received notice for her finding bi-partisan ways forward through contentious issues. Senator Dan Coats became known for sponsoring the "Don't Ask, Don't Tell" policy of the early 1990s. He later served as Director of National Intelligence from March 2017 to August 2019.

The Coats-Snowe Amendment prohibited, among other things, government entities receiving federal financial assistance from discriminating against any "health care entity" that "refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions" or refusing to make arrangements for those activities. The amendment specifically defined the term "health care entity" to include "an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions." 42 U.S.C. § 238n.

The Amendment also required government entities receiving federal financial instance to accredit health care entities "that would be accredited but for the accrediting

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agency's reliance upon an accreditation standards that requires an entity to perform an induced abortion or require, provide, or refer for training in the performance of induced abortions, or make arrangements for such training." The Amendment provided express rulemaking authority as to that provision only. Id. at § 238n(b)(1).

C. Medicaid and Medicare Advantage (1997).

The following year, in 1997, Congress passed the Balanced Budget Act, which changed key components of Medicaid and introduced Medicare Advantage. Of importance, the statute stated that Medicaid-managed organizations and Medicare Advantage plans were not required to "provide, reimburse for, or provide coverage of a counseling or referral service" if the organization objected to the service on moral or religious grounds. 42 U.S.C. §§ 1395w-22(j)(3)(B), 1396u-2(b)(3)(B). The Social Security Act provided express rulemaking authority to HHS to implement the Medicaid and Medicare Advantage provisions. Id. at §§ 1302(a); 1395w-26(b)(1).

D. Weldon Amendment (2004).

In 2004 came the Weldon Amendment. Representative Dave Weldon, a doctor, made headlines for legislation regarding home ownership affordability, vaccine safety, and the prevention of human cloning.

The Weldon Amendment provided that no federal funds "may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual...