'Patients Will Die': One County's Challenge To Trump's 'Conscience Rights' Rule

MARY LOUISE KELLY, HOST:

Moral and religious objections sometimes come up in medicine. A medical assistant might not agree with blood transfusions. A nurse might not want to assist with gender reassignment surgery. Last month, the U.S. Department of Health and Human Services issued a rule to support health workers who say they have been forced to do something that violates their conscience. It's set to go into effect in July, but it is facing several legal challenges. Some plaintiffs are asking judges to put the rule on hold while those lawsuits play out. NPR's Selena Simmons-Duffin explains.

SELENA SIMMONS-DUFFIN, BYLINE: Santa Clara County today becomes the latest plaintiff to make the case to a federal judge that if the rule goes into effect as scheduled, it would cause irreparable harm. So what's the harm of a rule designed to affirm health workers' conscience rights?

JEFF SMITH: If the rule goes through as it's written, patients will die.

SIMMONS-DUFFIN: This is Santa Clara County executive Jeff Smith, who's a physician and lawyer by training.

SMITH: We will have a guaranteed situation where a woman has had a complication of an abortion, where she's bleeding out and needs to have the services of some employee who has moral objections. That patient will die.

SIMMONS-DUFFIN: Santa Clara has 2 million residents. It's more populous than 14 states. The county runs three hospitals, including a level-one trauma center, clinics and pharmacies, all of which rely on federal funding to operate. James Williams, legal counsel for Santa Clara, says the county already has a policy for employees who have moral objections to opt out of care. But it differs from the federal rule in two key ways.

JAMES WILLIAMS: One - health care providers need to notify us in advance. They can't just be an on-the-fly objection. And that makes sense because how are you supposed to run a hospital if you don't know what your staff has a concern about until the actual procedure needs to happen? And second - there's an exception for dealing with an emergency situation.

SIMMONS-DUFFIN: HHS declined to comment for this story because litigation is ongoing, but the department summarized and responded to nearly a quarter-million public comments. To those that raised the emergency issue, the department said that the rule does not explicitly conflict with federal laws that mandate treatment for all patients in an emergency. Williams says that's not good enough.

WILLIAMS: Well, (laughter) what the rule doesn't do is actually say that it doesn't apply in emergencies.

SIMMONS-DUFFIN: If the rule goes into effect and Santa Clara does not comply, its federal funding could be withheld. On the other hand, if the county wanted to comply with the rule, Williams says, it would have another problem - figuring out how.

WILLIAMS: HHS didn't explain or consider how this rule would actually be implemented in practice. The rule kind of suggests that, basically, you need to have extra staffing to accommodate the fact that there may be people who have objections. That would be very costly.

SIMMONS-DUFFIN: Santa Clara is an activist county. It sued the Trump administration before over attempts to undermine DACA and threats against sanctuary cities. The county has had its eye on the conscience rights issue since the rule was proposed in January 2018. When the final rule came down, it was ready to go, says county executive Jeff Smith.

SMITH: We have a county board of supervisors that's very supportive of patients' rights. But every county, every public health system will have the same concerns.

SIMMONS-DUFFIN: Now a federal judge will have to decide if Santa Clara County would suffer irreparable harm. If so, that could stop the rule from going into effect on July 22. Trump administration officials have vowed to, quote, "defend the rule vigorously."

Selena Simmons-Duffin, NPR News.

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