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State v. Azar

United States District Court, E.D. Washington

November 21, 2019

ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; and UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.


          Stanley A. Bastian, United States District Judge.

         Before the Court are Defendants' Motion to Dismiss, or, in the Alternative for Summary Judgment, ECF No. 44, and Plaintiff's Motion for Summary Judgment, ECF No. 57. A hearing on the motion was held on November 7, 2019, in Spokane, Washington. Plaintiff was represented by Assistant Attorney Generals Jeffrey T. Sprung, Lauryn K. Fraas and Paul M. Crisalli. Defendants were represented Rebecca Kopplin and Benjamin T. Takemoto.

         On May 21, 2019, U.S. Department of Health and Human Services (HHS) issued a Final Rule in the Federal Register.[1] On May 28, 2019, Plaintiff filed suit to enjoin and set aside the Final Rule. In its Complaint, Plaintiff asserts the Final Rule “imposes the religious views of officials at HHS on Washingtonians and individuals across the country who seek timely, medically necessary care and information about reproductive health, LBGTQ health, and end-of-life care.” ECF No. 1 at 1.

         In June 2019, Plaintiff filed a Motion for Preliminary Injunction, ECF No. 8. The parties then asked the Court to hold Plaintiff's Motion for Preliminary Injunction in abeyance, given that the United States agreed to postpone the effective date of the Final Rule until November 22, 2019. ECF No. 27. The Court granted the parties' request. ECF No. 28. A briefing schedule was entered that set the deadlines for the parties' anticipated cross-motions for summary judgment to be filed. ECF No. 35.

         The Court has reviewed the parties' cross-motions for summary judgment; amici curiae briefs from the following entities: Scholars of the LGBT Population, ECF No. 53, Ex. 1; National Center for Lesbian Rights, ECF No. 55, Ex. 1; Institute for Policy Integrity at New York University School of Law, ECF No. 56, Ex. 1; Leading Medical Organizations, ECF No. 63, Ex. 1; and heard from counsel. For the reasons stated below, the Court grants Plaintiff's Motion for Summary Judgment, ECF No. 57, and denies Defendants' Motion to Dismiss, or, in the Alternative for Summary Judgment, ECF No. 44.

         Motion Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In an action reviewing the merits under the APA, however, the Court does not ask whether there is a genuine dispute as to any material fact. Rather, “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). In an APA review case, “summary judgment is the appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.” Id.

         Generally, courts reviewing an agency decision are limited to the administrative record in existence at the time of the decision. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005).

         Administrative Procedure Act

         Federal administrative agencies are required to engage in “reasoned decisionmarking.” Michigan v. E.P.A., __ U.S. __, 135 S.Ct. 2699, 2706 (2015). “Not only must an agency's decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” Id. (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)).

         The Administrative Procedure Act, 5 U.S.C § 551 et seq., provides the judicial authority to review executive agency action for procedural correctness. F.C.C v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). The APA requires a court to “hold unlawful and set aside agency action, findings, and conclusions found to be--(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or (D) without observance of procedure required by law.” 5 U.S.C. § 706 (2).

         Final agency actions are arbitrary and capricious if the agency fails to “examine relevant data, ” “consider an important aspect of the problem, ” or “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Unexplained inconsistency” between agency actions is “a reason for holding an interpretation to be an arbitrary and capricious change.” Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). This Court's review of an agency decision “is based on the administrative record and the basis for the agency's decision must come from the record.” Gill v. U.S. Dep't of Justice, 913 F.3d 1179, 1187 (9th Cir. 2019) (quotation omitted). Such review is narrow; the Court may not substitute its own judgment for that of the agency. Fox, 556 U.S. at 513.

         When the agency's action represents a policy change, such action requires “a reasonable analysis for the change beyond that which may be required when an agency does not act in the first instance.” Motor Vehicle Mfrs. Ass'n, 463 U.S. at 42. “A policy change complies with the APA if the agency (1) displays ‘awareness that it is changing position' (2) shows that ‘the new policy is permissible under the statute,' (3) ‘believes' the new policy is better, and (4) provides ‘good reasons' for the new policy, which, if the ‘new policy rests upon factual findings that contradict those which underlay its prior policy,' must include ‘a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Organized Village of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 966 (2015) (quoting Fox, 556 U.S. at 515-16). On the other hand, if the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so, the policy change violates the APA. Fox, 566 U.S. at 537 (“An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”).

         Not every violation of the APA invalidates an agency action. Kake, 795 F.3d at 969 (citing Jicarilla Apache Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010)). Rather, the opponent of the action has the burden to demonstrate that an error is prejudicial. Id. The required demonstration of prejudice is not particularly onerous. Id. “If prejudice is obvious to the court, the party challenging agency action need not demonstrate anything further.” Id. (quoting Jicarilla, 613 F.3d at 1121).

         Federal Conscience and Anti-Discrimination Laws

         In the Executive Summary of the Final Rule, HHS relies on a number of statutes it maintains reflect Congress' intention to protect the freedoms of conscience and religious exercise in the health care context. 84 Fed. Reg. at 23170-74. These provisions include the Church Amendment, the Coats-Snowe Amendment, the Weldon Amendment, provisions under the Patient Protection and Affordable Care Act (“ACA”), provisions for Medicare Advantage organizations and Medicaid managed care organizations; provisions related to the performance of advanced directives; conscience provisions related to Global Health Programs, compulsory health care, hearing screening, occupational illness testing, vaccinations, mental health treatment; provisions in appropriations legislation; provisions for religious nonmedical health care providers and their patients. Id.

         Many of these statutory protections have existed unchanged for decades.

         1. The Church Amendments

         The Church Amendments were enacted at various times during the 1970's. Among other things, they prohibit certain HHS grantees from discriminating in the employment of, or the extension of staff privileges to, any health care professional because they refused, based on their religious beliefs or moral convictions, to perform or assist in the performance of any lawful sterilization or abortion procedures.[2] The Church Amendments also prohibit individuals from being required to perform or assist in the performance of any health service program or research activity funded in whole or in part under a program administered by the Secretary that are contrary to their religious beliefs or moral convictions. Id. Any recipients of a grant, contract, loan, or loan guarantee under the Public Health Service Act must comply with paragraphs (b) and (c)(1) of the Church Amendments.[3] Paragraph (c)(2) applies to the recipients of the HHS's grants or contracts for biomedical or behavioral research under any program administered by the Secretary.[4]

         i. Paragraph (b)

         Paragraph (b) of the Church Amendments provides, with regard to individuals, that no court, public official, or other public authority can use an individual's receipt of certain federal funding as grounds to require the individual to perform, or assist in, sterilization procedures or abortions, if doing so would be contrary to his or her religious beliefs or moral convictions; and prohibits public authorities from requiring an entity that receives federal funds under certain HHS programs to (1) to permit sterilizations or abortions in the entity's facilities if the performance of such procedures there violates the entity's religious beliefs or moral convictions, or (2) to make its personnel available for such procedures if contrary to the personnel's religious beliefs or moral convictions.[5]

         ii. Paragraph (c)

         Paragraph (c)(1) of the Church Amendments prohibits certain entities from discriminating in employment, promotion, or termination of employment decisions with respect to physicians and other health care personnel based on an individual declining to perform or assist in an abortion or sterilization because of that individual's religious beliefs or moral convictions; and prohibits those entities from discriminating in such decisions based on an individual's performance of a lawful abortion or sterilization procedure, or on an individual's religious beliefs or moral convictions about such procedures more generally.[6]

         Paragraph (c)(2) prohibits discrimination by such an entity against physicians or other health care personnel in employment, promotion, or termination of employment, as well as discrimination in the extension of staff or other privileges, because of an individual's performance or assistance in any lawful health service or research activity, declining to perform or assist in any such service or activity based on religious beliefs or moral convictions, or the individual's religious beliefs or moral convictions respecting such services or activities more generally.[7]

         iii. Paragraph (d)

         Paragraph (d) of the Church Amendments applies to any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary and states that no individual shall be required to perform or assist in the performance of any part of the program or research activity if doing so would be contrary to his or her religious beliefs or moral convictions.[8]

         iv. Paragraph (e)

         Paragraph (e) of the Church Amendments applies to health care training or study programs, including internships and residencies, and prohibits any entity receiving certain funds from denying admission to, or otherwise discriminating against, applicants for training or study based on the applicant's reluctance or willingness to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to, or consistent with, the applicant's religious beliefs or moral convictions.[9]

         2. 1996 Coats-Snowe Amendment (Section 245 of the Public Health Services Act)

         The Coats-Snowe Amendment was passed in 1996. The Coats-Snowe Amendment bars the federal government and any State or local government that receives federal financial assistance from discriminating against a health care entity that (1) refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions; (2) refuses to make arrangements for any of the activities specified in paragraph (1); or (3) the entity attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.[10] “Health care entity” is defined as including an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions.[11]

         The Coats-Snowe Amendment also prohibits governments receiving federal assistance from denying a legal status (including a license or certificate) or financial assistance, services, or other benefits to a health care entity based on an applicable physician training program's lack of accreditation due to the accrediting agency's requirements that a health care entity perform induced abortions; require, provide, or refer for training in the performance of induced abortions; or make arrangements for such training, regardless of whether such standard provides exceptions or exemptions.[12]

         3. 2005 Weldon Amendment

         The Weldon Amendment was added to the annual 2005 health spending bill and has been included in subsequent appropriations bills.[13] It bars the use of appropriated funds on a federal agency or programs, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not, among other things, refer for abortions. Id.

         The Weldon Amendment defines the term “health care entity” to include an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan. Id.

         4. Patient Protection Affordable Care Act (ACA)

         i. Section 1553

         Section 1553 of the ACA prohibits the Federal government, and any State or local government or health care provider that receives Federal financial assistance under the ACA, or any ACA health plans, from discriminating against an individual or institutional health care entity because of the individual or entity's objection to providing any health care items or service for the purpose of causing or assisting in causing death, such as by assisted suicide, euthanasia, or mercy killing.[14] Section 1553 designates the Office of Civil Rights to receive complaints of discrimination on that basis. Id.

         ii. Section 1303

         Section 1303 of the ACA specifically states that health plans are not required to provide coverage of abortion services as part of “essential health benefits for any plan year.”[15] No. qualified health plan offered through an ACA exchange may discriminate against any individual health care provider or health care facility because of the facility or provider's unwillingness to provide, pay for, provide coverage of, or refer for abortions.[16]

         iii. Section 1441

         Section 1441 provides exemptions from the individual responsibility requirement imposed under Internal Revenue Code § 5000A, including when such individuals are exempt based on a hardship (such as the inability to secure affordable coverage without abortion), are members of an exempt religious organization or division, or participate in a “health care sharing ministry.”[17]

         5. Patient's Self-Determination Act

         Section 7 of the Assisted Suicide Funding Restriction Act of 1997[18] clarified that the Patient Self-Determination Act's provisions stating that Medicare and Medicaid beneficiaries have certain self-determination rights do not (1) require any provider, organization, or any employee of such provider or organization participating in the Medicare or Medicaid program to inform or counsel any individual about a right to any item or service furnished for the purpose of causing or assisting in causing the death of such individual, such as assisted suicide, euthanasia, or mercy killing; or (2) apply to or affect any requirement with respect to a portion of an advance directive that directs the purposeful causing of, or assistance in causing, the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.[19] Those protections extend to Medicaid and Medicare providers, such as hospitals, skilled nursing facilities, home health or personal care service providers, hospice programs, Medicaid managed care organizations, health maintenance organizations, Medicareਚ≱ (now Medicare Advantage) organizations, and prepaid organizations. Id.

         6. Counseling and Referral

         Certain Federal protections prohibit organizations offering Medicareਚ≱ (now Medicare Advantage) plans and Medicaid managed care organizations from being compelled under certain circumstances to provide, reimburse for, or cover, any counseling or referral service in plans over an objection on moral or religious grounds.[20] Department regulations provide that this conscience provision for managed care organizations also applies to prepaid inpatient health plans and prepaid ambulatory health plans under the Medicaid program.[21]

         7. Global Health Programs

         Recipients of foreign assistance funds for HIV/AIDS prevention, treatment, or care authorized by section 104A of the Foreign Assistance Act of 1961 cannot be required, as a condition of receiving such funds, (1) to “endorse or utilize a multisectoral or comprehensive approach to combating HIV/AIDS, ” or (2) to “endorse, utilize, make a referral to, become integrated with, or otherwise participate in any program or activity to which the organization has a religious or moral objection.”[22] The government also cannot discriminate against such recipients in the solicitation or issuance of grants, contracts, or cooperative agreements for the recipients' refusal to do any such actions.[23]

         8. Compulsory Medical Screening, Examination, Diagnosis, or Treatment.

         Under the Public Health Service Act, certain suicide prevention programs are not to be construed to require “suicide assessment, early intervention, or treatment services for youth” if their parents or legal guardians have religious or moral objections to such services.[24]

         Authority to issue certain grants through the Health Resources and Services Administration (HRSA), Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH) may not be construed to preempt or prohibit State laws which do not require hearing loss screening for newborn, infants or young children whose parents object to such screening based on religious beliefs.[25]

         Certain State and local child abuse prevention and treatment programs funded by HHS are not to be construed as creating a Federal requirement that a parent or legal guardian provide a child any medical service or treatment ...

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