Second Judge Tosses HHS 'Conscience Rule'

The administration lacked legal authority to impose the rule, the judges wrote.

San Francisco has prevailed in the lawsuit it filed last spring against the Trump administration over a so-called "conscience rule" that sought to bolster healthcare providers' right to abstain from assisting in the performance of services they find objectionable for religious or other reasons.

U.S. District Judge William Alsup in the Northern District of California set the rule aside Tuesday, saying Health and Human Services didn't have the legal authority to impose it. He's the second federal judge to come down against the 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," Alsup wrote. "Such harsh treatment would be blessed by the new rule."

Earlier this month, U.S. District Judge Paul Engelmayer in the Southern District of New York vacated the rule in a decision on consolidated lawsuits. The rule, he wrote, contradicts both Title VII and the Emergency Medical Treatment and Active Labor Act (EMTALA), and the way HHS finalized it violated the Administrative Procedure Act in "numerous, fundamental, and far-reaching" ways.

U.S. Sen. Ben Sasse, R–Nebraska, called Engelmayer's decision "absurd mush" and encouraged the Trump administration to defend its rule all the way to the Supreme Court.

The two decisions are ripe for appeal. Engelmayer's decision would be appealed to the Second Circuit, and Alsup's opinion would be appealed to the Ninth Circuit. If the appellate courts were to reach differing conclusions, that could increase the likelihood of this dispute making its way to the Supreme Court.