Federal Court: Trump's "Conscience Act" Exceeds Authority but Does Not Violate the Establishment Clause

Author’s Note: On the morning of Wednesday, November 6, a New York Federal judge issued a ruling that invalidated the Trump administration's "conscience protection" rule. The Health and Human Services rule was intended to protect those who did not want to engage in abortions, assisted suicide, or other activities that violated their religious or moral beliefs. Many organizations are outraged at this decision, claiming it was made by an "activist judge" who is opposed to their morals and values.

While I strongly support the rights of conscience of doctors not to engage in these kinds of activities, this was really a decision about executive power and whether any sitting president can put rules in place that are not based on existing statutes passed by Congress. I also believe that rights to free exercise of religion in the context of healthcare conscience are presently protective, although they may need to be shored up with legislation or legal action within the court system.

However, given the fact that our nation is always within four years of what could be a massive shift in politics, it may not be wise to give any sitting President the power to pull together various statutes to form new rules that impact the free exercise of religion.

You may not agree with me, but I've read the decision and in view of not only current politics but what we can expect to see this time next year, I think the judge made the right call.

Michael Peabody, Esq.


Founders' First Freedom


In a 147-page ruling issued on Wednesday, November 6, New York Federal Judge Paul Engelmayer found that the Trump administration's "conscience act" exceeded the president's authority but did not violate the Establishment Clause. Given its procedural defects, the rule was invalidated in its entirety.

In May 2019, the U.S. Department of Health and Human Services ("HHS") announced a rule entitled, "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority", 45 CFR Part 88, ("HHS rule") that interpreted more than 30 existing laws and regulations as providing individuals and entities the right to refrain from activities that violated their conscience.

Nineteen states and several Planned Parenthood organizations immediately filed for an injunction, claiming that the act violated the Establishment Clause and went beyond the authority delegated to HHS under the Administrative Procedure Act ("APA").

The Executive Branch has limited powers and must rely on existing legislative authority

The APA, 5 U.S.C. §706, enacted in 1966, allows a court to set aside an agency action for any of six reasons, but suffice it to say that the Executive Branch cannot simply develop new law and impose it as a regulation. Under the legal doctrine of the "separation of powers," each branch has its own job to do. Congress makes the law, the Administration carries out the law, and the Judicial Branch interprets the law.

In this case, the HHS rule read more like legislation than an interpretation of existing legislation. It had its own set of definitions and imposed new rules, duties normally reserved for Congress. The rule went as far as to tie violations to the termination of HHS funding, a remedy not provided in existing law.

The court found that the HHS rule added substantial content to the existing laws upon which it was purportedly based and that the HHS rule "unavoidably would shape the primary conduct of participants throughout the health care industry."

Because it was creating new law, the court found that HHS lacked authority to regulate the conduct of funding recipients with regard to conscience objections. It could only address the specific areas of conduct mentioned by the conscience provisions in existing law. Existing laws, including the Affordable Care Act ("ACA"), Medicare, and Medicaid, already allow providers to object to services on religious or moral grounds.

The court finds the HHS Rule did not violate the Establishment Clause

The Court did not find that the rule violated the Establishment Clause because it did not require the states to engage in unconstitutional activity. It recognized both religious and secular moral objections to certain medical procedures, and equally accommodated all conscience-based objections. The court also determined that it did not violate the Establishment Clause by providing excessive free exercise of religion.

The court invalidated the rule as a whole

Although the HHS rule included language that if parts of the rule were found unconstitutional, they could be taken out while the rest would stand, the court ruled that the entire rule violated the APA, and that to try to remove parts could actually run contrary to HHS' goals in passing the rule.

The takeaway

The rights of medical professionals are a major concern, but they still have the right to pursue remedies under the Free Exercise Clause of the U.S. Constitution if they are forced to act against their conscience. While Congress may not be inclined to protect their rights with legislation, they may be able to win those freedoms in court.

This is a case about executive power and whether any U.S. President can piece together existing legislation to form a fundamentally different new law. While conservatives may be very disappointed with this ruling, they may want to consider what would happen if a left-leaning administration engaged in similar lawmaking activity. In that sense, this decision might prove to be a blessing in disguise.

Michael Peabody, Esq. is editor of ReligiousLiberty.TV, a website that celebrates freedom of conscience, where this article first appeared. It is reprinted here with permission.

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This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/10002
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The problem is that we have gone so long with over-reaching executive orders. Obama did many of them some like the Dream Act are clearly not legal. When you have a congress that can do nothing…can’t even do a budget for what is it 12 or more years now, Presidents think they have to solve all these things. So maybe that is one good thing about Trump being President, finally some opposition to these kind of EO.


trump seems to be losing a lot in court lately, thx to obama…southern district of new york’s engelmayer, an obama appointee, saw his wednesday ruling followed on thursday by spokane judge stanley bastian, from the eastern district of washington, also an obama appointee…

i think this one-two punch decreases the viability of any appeal to SCOTUS, even with its conservative majority, but i wouldn’t be surprised to see trump appeal…victory with the “conscience act” would be a big win, heading into 2020, and trump needs fresh reminders to the GOP about why it needs to look the other way during the impending senate impeachment trial…

Interesting article - but how far can we take “free exercise of religion” in the context of healthcare? Based on moral values, can an emergency responder, nurse, or physician refuse to take care of a patient who has overdosed on drugs; has pornography tattooed on their arms; has gotten pregnant in an unmarried relationship; is clearly drunk; is gay or a transvestite; is a white supremacist; is wearing a Muslim hijab or burka; is wearing a Jewish skullcap; or…God forbid…is wearing a Christian “Not of this World” t-shirt?

Can a patient who is harmed by refusal to treat actually sue the “caregiver” they sought and expected treatment from? Can an employer legally fire a caregiver for refusal to treat a patient when the employee claims to be exerting freedom of religion? In my mind, it’s immoral to refuse treatment under any condition - except when doing so puts you or others in harm’s way.

I’m a bit lost here, Mr. Peabody. Can you help me out?


Professor you bring up some very good questions certainly worthy of discussion both from a religious perspective but also from a government perspective. While the topic is health care, it seems logical to ask similar questions about many other topics facing government and religion.

[quote=“ProfessorKent, post:4, topic:19330”]
I’m a bit lost here, Mr. Peabody. Can you help me out?"
“You will have to ask “Mr. Know it all” Bullwinkle, said Rocky the Flying Squirrel.”

That is probably Adam Schiff.

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In general I agree that the Executive branch currently has acquired too much power. For example, congress has all but abdicated their role in declaring war to the president, who while he cannot actually declare war, just sends troops anyway. We have actually not declared war against any country since North Korea, a war which technically we are still waging - since we have never signed a treaty ending that war.

The DREAM Act was a bill first introduced in the Senate on August 1, 2001, by United States Senators Dick Durbin (D-Illinois) and Orrin Hatch (R-Utah), and has since been reintroduced several times but has failed to pass.

There is nothing illegal about it, as it is a proposed law, which has not been enacted. And if it had been, it would be law, and so also not illegal.

You may be referring to Deferred Action for Childhood Arrivals (DACA) program, where President Barack Obama announced that his administration would stop deporting undocumented immigrants who match certain criteria included in the proposed DREAM Act.

There is a difference, though, between the executive branch not enforcing a particular law and trying to create a new one - as this article discusses. There are many, many laws on the books we don’t enforce, or only very selectively enforce. That is generally accepted. However, the President should not be able to create and enforce new laws. That’s a disaster waiting to happen, as the article points out.


You have to give doctors more freedom than that…

There’s a number of reasons doctors can refuse treatment, but none are as interesting as if you or your spouse are medical malpractice attorneys. There’s a full blown cold war going between these occupations:


And yes, as a private doctor you can legally refuse to treat a malpractice lawyer.

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Umm…ain’t that equivalent to being in harm’s way? (LOL)

From the article: “Animosity between doctors and medical malpractice lawyers has reached such a pitch in the United States that the American Medical Association last week debated a motion proposing that doctors should refuse medical treatment to such lawyers, their families, and employees except in emergencies. Although the motion…was lost, some doctors felt the fact that it was proposed at all shows how bad relations between the professions have become.”

There is, indeed, a lot of leeway for physicians. From the AMA Code of Medical Ethics Opinion 1.1.7:

“Physicians’ freedom to act according to conscience is not unlimited, however. Physicians are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient.”

“In other circumstances, physicians may be able to act (or refrain from acting) in accordance with the dictates of their conscience without violating their professional obligations.”

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Wonderful. since I am a novice at this and have found no way to contact anyone in the Religious Liberty Dept. I have a different question.
Has the department been advised or keeping up with the Maryland High School student, Caleigh Wood, who refused to take part in a school assignment to write the Islamic conversion prayer that states…"there is no god but Allah, and Muhammad is the messenger of Allah:? Fox News reported last week that the “Supreme Court rejects case of Maryland student forced to write Muslim conversion prayer”. "The Federal district Court and the Fourth Circuit Court of Appeals ruled IN FAVOR of the high school’s Islamic Curriculum.

The Fox News accounts are misleading. Condensed from a fairly neutral treatment at Education Week:

  • Caleigh Wood took the required World History class as an 11th grader at La Plata High School in La Plata, MD, during the 2014-15 school year. The unit entitled the Muslim World was five days of a yearlong course that covered the Renaissance and Reformation, the Enlightenment period, the Industrial Revolution, and World Wars I and II.

  • School officials declined to excuse Wood from the unit, and John Wood directed his daughter not to complete the assignment, which resulted in a lower percentage grade for the course, but did not affect her letter grade [I believe she got an F, but this is not clear to me].

  • The Woods sued under the First Amendment, and lost in a federal district court. In its Feb. 11 decision, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Va., also ruled for the Charles County district and its officials. According to the 4th Circuit court, “The use of both the comparative faith statement and the shahada assignment in Wood’s world history class involved no more than having the class read, discuss, and think about Islam. These types of educational materials, which identify the views of a particular religion, do not amount to an endorsement of religion.

I don’t have time right now to learn the Supreme Court’s argument for not hearing the case. Clearly, it supported the lower court decisions.


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