AG Herring Challenges Rule Allowing Discrimination In Providing Health Care

He joins a coalition of state attorneys general in filing an amicus brief against HHS final rule

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Photo capture of video provided by Office of Attorney General Mark Herring.

Attorney General Mark R. Herring today joined a coalition of 22 attorneys general in fighting the Trump Administration’s attempts to allow businesses and individuals to discriminate against patients and refuse to provide necessary health care. In an amicus brief filed in support of the states of California and Washington in their lawsuits brought against the U.S. Department of Health and Human Services (HHS), Attorney General Herring and his colleagues oppose the Trump Administration’s final ‘Refusal-of-Care’ rule.

“No one should ever fear being discriminated against but especially by a health care provider and it’s unfathomable that the Trump Administration is trying to give health care providers the option to discriminate against patients,” said Attorney General Herring. “This Rule has the potential to set a dangerous precedent of allowing subjective health care in this country and we cannot allow that to happen. My colleagues and I will continue to fight the Trump Administration’s illegal and dangerous policies that could undermine quality health care in Virginia and across the country.”

In May 2019, the Trump Administration’s HHS introduced a final rule that would undermine the delivery of health care by allowing a wide range of health care institutions and individuals the right to refuse care and discriminate against patients. The Rule drastically expands the number of providers eligible to make such refusals. The Rule makes this right absolute and categorical, and no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse. The rule would disproportionately impact women and members of the LGBTQ+ community.

Every federal court that has considered the rule has agreed that it is not authorized by law, and has accordingly vacated the rule in full, including the U.S. District Court for the Northern District of California and the U.S. District Court for the Eastern District of Washington. After those losses, the Trump Administration appealed to the U.S. Court of Appeals for the Ninth Circuit. Attorney General Herring and his colleagues filed this amicus brief in support of California and Washington in that appeal.

In the amicus brief, the coalition argues that the rule’s definition of “discrimination” is inconsistent with statute and is thus contrary to the Administrative Procedures Act and that HHS acted arbitrarily and capriciously in promulgating the rule. Specifically, HHS failed to acknowledge that the redefinition of “discrimination” represented a change in position, failed to consider the reliance interests created by HHS’s own past guidance as to the scope of the federal conscience statutes’ anti-discrimination provisions, and relied on empirical justification for the rule that is contradicted by the administrative record.

Further, the coalition explains that the rule not only threatens to harm countless patients in disrupting their access to medically necessary care, but also places at risk billions in critical federal health care funding that Congress has appropriated to the states.

Similarly but separately, Attorney General Herring joined a coalition of 23 states and localities in filing a lawsuit against the Trump Administration’s ‘Refusal-of-Care’ rule in the U.S. District Court for the Southern District of New York in May of 2019. Last November, the coalition won that case in federal court. The Trump Administration has appealed the matter and the case is pending in the U.S. Court of Appeals for the Second Circuit.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of Colorado, Connecticut, Delaware, Hawai‘i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin, and the District of Columbia.