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States suing Trump administration over discriminatory Refusal-of-Care rule

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California and Washington are suing the Trump administration over a Refusal-of-Care rule that would allow healthcare providers to deny care and employers to deny coverage for abortion and contraception.

“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 Virginia Attorney General Mark Herring, who has joined a coalition of 22 attorneys general in fighting the administration’s attempts to allow businesses and individuals to discriminate against patients and refuse to provide necessary health care.

“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,” Herring said.

The Refusal-of-Care rule, finalized by the Department of Health and Human Services last year, allows a wide range of health care institutions and individuals the right to refuse care and discriminate against patients based on the providers’ “religious beliefs or moral convictions.”

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.

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.

In an 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.