On May 2, the U.S. Department of Health and Human Services (HHS) issued a new rule strengthening enforcement of existing rights allowing healthcare professionals and others to refuse to participate in abortions and other procedures that violate their conscience. Also on May 2, the City of San Francisco filed a lawsuit to have that new rule declared unconstitutional.
Apparently San Francisco didn’t understand the part where HHS explained that the rule merely beefed up the enforcement of existing, already-on-the-books laws guaranteeing conscience rights attached to HHS-funded programs. No new rights were created. There’s nothing unconstitutional about better enforcement of existing laws. In fact, you’d think that might be applauded by most people.
Not so. It seems San Francisco is fine with religious freedom laws that no one enforces, but comes roaring out of the blocks when somebody announces that there’s a new sheriff in town who intends to restore law and order.
To the City Attorney there, religious freedom equals discrimination against everybody else. The legal complaint filed in federal court says as much:
“The Final Rule requires the City and County of San Francisco—in any and all circumstances—to prioritize providers’ religious beliefs over the health and lives of women, lesbian, gay, bisexual, or transgender people, and other medically and socially vulnerable populations.”
But the HHS rule doesn’t grant new religious freedom rights. It doesn’t require anything other than better enforcement of what 25 existing federal conscience provisions require. The previous HHS rule proved “inadequate” to enforce those provisions, and HHS said—I’m paraphrasing here—that it’s high time that HHS step up to enforce those provisions.
San Francisco admits in its complaint that it’s worried that it could lose nearly $1 billion in federal taxpayer dollars if it doesn’t comply with federal conscience laws. It weakly attempts to argue that it’s currently doing just fine in the conscience department, allowing doctors and nurses to “request” to recuse themselves from objectionable procedures, but only granting the request if it wants to.
Allowing the government discretion to grant or deny your absolute right makes a mockery of the word “right.”
San Francisco is also worried that the HHS rule will allow employers with conscience objections to refuse to pay for abortions or “sex reassignment” surgery through company healthcare plans. Here they descend completely into the cultural clashes over sexual orientation and gender identity, instead of being concerned with what its public hospitals are required to do with respect to the rights of its healthcare personnel.
The city is fortunate to be located in the heart of the liberal 9th Circuit federal courts, so it may have an easy time of it in the early legal proceedings. However, we can only hope and pray that reason will prevail as the legal challenge moves up the federal system.
