New York v. U.S. Dep't of Health & Human Servs.

414 F.Supp.3d 475

State of NEW YORK, City of New York, State of Colorado, State of Connecticut, State of Delaware, District of Columbia, State of Hawai‘i, State of Illinois, State of Maryland, Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Wisconsin, City of Chicago, and Cook County, Illinois, Plaintiffs,

v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; Alex M. Azar II, in His Official Capacity as Secretary of the United States Department of Health and Human Services; and the United States of America, Defendants,Dr. Regina Frost and Christian Medical and Dental Association, Defendant-Intervenors.

Planned Parenthood Federation of America, Inc., and Planned Parenthood of Northern New England, Inc., Plaintiffs,

v.Alex M. Azar II, in His Official Capacity as Secretary, United States Department of Health and Human Services; United States Department of Health and Human Services; Roger Severino, in His Official Capacity as Director, Office for Civil Rights, United States Department of Health and Human Services; and Office for Civil Rights, United States Department of Health and Human Services, Defendants.

National Family Planning and Reproductive Health Association, and Public Health Solutions, Inc., Plaintiffs,

v.Alex M. Azar, II, in His Official Capacity as Secretary of the U.S. Department of Health and Human Services; U.S. Department of Health and Human Services; Roger Severino, in His Official Capacity as Director of the Office for Civil Rights of the U.S. Department of Health and Human Services; and Office for Civil Rights of the U.S. Department of Health and Human Services, Defendants.

19 Civ. 4676 (PAE), 19 Civ. 5433 (PAE), 19 Civ. 5435 (PAE)

United States District Court, S.D. New York.

Signed November 6, 2019

Amanda Marie Meyer, Lisa M. Landau, Matthew Colangelo, Kathleen Konopka, New York State Office of The Attorney General, Justin Alexander Deabler, Spears & Imes LLP, Cynthia C. Weaver, New York City Law Department, Sarah Mac Dougall, David M. Zionts, Covington & Burling, Adam Grogg, U.S. House of Representatives, Hana Bajramovic, Planned Parenthood Federation of America, Alexa Rebecca Kolbi-Molinas, Brigitte Adrienne Amiri, Lindsey Kaley, American Civil Liberties Union, Christopher T. Dunn, Erin Beth Harrist, New York Civil Liberties Union, New York, NY, Otis Comorau, Astoria, NY, Jennifer Weaver, Colo. Attorney General's Office, Denver, CO, Maura Murphy Osborne, Office of The Attorney General, Hartford, CT, David J. Lyons, Ilona Kirshon, Delaware Department of Justice, Wilmington, DE, Brittany Marie Jones, Jones Day, Diana Salgado, Planned Parenthood Federation of America, Kristen Paige Miller, Democracy Forward Foundation, Michelle Iris Banker, National Women's Law Center, Valerie M. Nannery, Robin Thurston, Washington, DC, Andrea J. Armitage, Hawaii Dept. of the Attorney General, Diane K. Taira, Jill T. Nagamine, State of Hawaii, Honolulu, HI, Sarah Jeanne Gallo, Lauren Barski, Illinois Office of the Attorney General, Jessica Scheller, Prathima Yeddanapudi, Cook County State's Attorney's Office, Chicago, IL, Jeffrey Paul Dunlap, Office of the Attorney General, Baltimore, MD, Jonathan T. Burke, Office of the Attorney General of Massachusetts, Worcester, MA, Fadwa A. Hammoud, Toni L. Harris, Michigan Department of Attorney General, Lansing, MI, Scott Ikeda, Minnesota Office of the Attorney General, St. Paul, MN, Heidi Parry Stern, Nevada Attorney General, Las Vegas, NV, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, Elleanor H. Chin, Oregon Department of Justice, Salem, OR, Aimee Diane Thomson, PA Office of the Attorney General, Philadelphia, PA, Michael W. Field, Rhode Island Attorney General, Providence, RI, Benjamin Daniel Battles, Eleanor Laurel Pullin Spottswood, Office of the Attorney General, Montpelier, VT, Zachary R. Glubiak, Office of the Attorney General, Richmond, VA, Maura Whelan, Wisconsin Department of Justice, Madison, WI, Kurt Calia, Covington & Burling LLP, Palo Alto, CA, for Plaintiffs.

Benjamin Thomas Takemoto, Bradley Humphreys, Christopher Bates, Rebecca Kopplin, Vinita Andrapalliyal, U.S. Department of Justice, Washington, DC, for Defendants.

Allyson N. Ho, Gibson, Dunn & Crutcher LLP, Dallas, TX, Daniel Blomberg, Nicholas Robert Reaves, Becket, Jason Harrison Hilborn, Gibson, Dunn & Crutcher LLP, Washington, DC, Robert Dunn, Gibson, Dunn & Crutcher, LLP, Palo Alto, CA, for Defendant-Intervenors.

OPINION AND ORDER

PAUL A. ENGELMAYER, District Judge:

These consolidated cases involve challenges to a rule recently promulgated by the United States Department of Health and Human Services ("HHS") entitled " Protecting Statutory Conscience Rights in Health Care; Delegations of Authority." 84 Fed. Reg. 23,170 (May 21, 2019) (codified at 45 C.F.R. pt. 88) (the "Rule" or "2019 Rule"). The Rule purports to interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection. The Rule was originally set to take effect on July 22, 2019. HHS, during this litigation, agreed to delay the effective date until November 22, 2019.

There are three sets of plaintiffs. One consists of 19 states, the District of Columbia, and three local governments, led by the State of New York (collectively, the "State Plaintiffs"). Another consists of Planned Parenthood Federation of America, Inc., and Planned Parenthood of Northern New England, Inc. (together, "Planned Parenthood"). A third consists of National Family Planning and Reproductive Health Association and Public Health Solutions, Inc. (together, "NFPRHA" and, with Planned Parenthood, the "Provider Plaintiffs"). Plaintiffs argue that the Rule was issued in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and is unconstitutional. They ask the Court to enter summary judgment invalidating the Rule based on the administrative record, or alternatively, to enter a preliminary injunction staying the Rule's implementation pending further review. As to the APA, plaintiffs argue that the Rule exceeds HHS's statutory authority, was not adopted in accordance with law, is arbitrary and capricious, and was adopted in breach of APA procedural requirements. See 5 U.S.C. § 706(2)(A), (C)–(D). As to the Constitution, plaintiffs principally argue that the Rule conflicts with the Spending, U.S. Const. art. I, § 8, cl. 1, and Establishment Clauses, id. amend. I, and violates the Separation of Powers.

Defendants are HHS, HHS's Secretary Alex M. Azar II, the HHS Office for Civil Rights ("OCR"), OCR Director Roger Severino, and the United States (collectively, "HHS"). They defend the Rule as lawful; oppose plaintiffs' motions for summary judgment and a preliminary injunction; and cross-move for dismissal of plaintiffs' complaints, or alternatively, for summary judgment sustaining the Rule. The Court has also permitted the intervention of the Christian Medical and Dental Associations ("CMDA") and Dr. Regina Frost (collectively, "Defendant-Intervenors"). They seek the same relief as HHS.

On the pending motions, the Court benefited from extensive and thoughtful briefing from all parties, and from 10 helpful amicus briefs submitted by a combined 40 amici. The Court reviewed substantial factual submissions, including the relevant aspects of the administrative record before HHS. This record formed the factual backdrop for all claims, particularly those under the APA. The Court also benefited from extended oral argument, held on October 18, 2019.

For the following reasons, the Court vacates the Rule in full.

I. Background

This section reviews the statutory provisions pursuant to which HHS promulgated the 2019 Rule, which HHS presents as systematically interpreting and implementing more than 30 statutory provisions that recognize the rights of conscience-based objectors in the health care arena. It then reviews the history of conscience regulations proposed by HHS. It then reviews the 2019 Rule. Finally, it recaps this litigation.

A. Statutory and Regulatory Background

1. The Conscience Provisions

HHS promulgated the Rule against the backdrop of numerous federal statutory provisions (the "Conscience Provisions") that aim, in discrete contexts, to accommodate religious and moral objections to health care services provided by recipients of federal funds. These provisions principally, although not exclusively, address objections to abortion, sterilization, and assisted suicide, in addition to counseling and referrals related to these services. See 84 Fed. Reg. at 23,170.

Of the more than 30 such provisions that the Rule purports to interpret, it and the parties identify five as the most central. These are (1) the Church Amendments, 42 U.S.C. § 300a–7 ; (2) the Coats-Snowe Amendment, id. § 238n(a); (3) the Weldon Amendment, i.e. , Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2019, Pub. L. No. 115-245, Div. B., § 507(d), 132 Stat. 2981, 3118 (2018); (4) the Conscience Provisions in the Patient Protection and Affordable Care Act ("ACA") of 2010, 42 U.S.C. §§ 14406(1), 18023(b)(1)(A) and (b)(4), 18113 ; and (5) the Medicaid and Medicare Advantage Conscience Provisions, 42 U.S.C. §§ 1395w–22(j)(3)(B), 1396(u) –2(b)(3)(B).¹

a. The Church Amendments

The Church Amendments were the first federal Conscience Provisions to be enacted. They are also the broadest in scope.

In 1973, Congress passed the Health Programs Extension Act of 1973. It extended appropriations for various programs under the Public Health Services Act, the Community Mental Health Centers Act, the Developmental Disabilities and...