David Quinn Gacioch, Esq.
McDermott Will & Emery LLP
28 State Street
Boston, MA 02109-1775
July 30, 2021
RE: OCR Transaction Number 18-306427
Dear Mr. Gacioch:
We are writing to inform you that, concurrent with the U.S. Department of Justice's filing today in U.S. v. Univ. of Vermont Med Ctr., No. 2:20-cv-00213, (D. Vt.), the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), is withdrawing its August 28, 2019 Notice of Violation (NOV) in OCR Transaction No. 306427.
In the August 28, 2019 NOV, OCR found that the University of Vermont Medical Center (UVMMC) violated the Church Amendments. The NOV stated that the violation was caused by UVMMC requiring a nurse to participate in an abortion despite her religious objection, and by maintaining an inadequate "Conflict of Care" policy. The NOV was based on the premise that the Church Amendments create an "unqualified right" of objecting employees to decline to participate in procedures to which they have a religious or moral objection. NOV, p. 4.
That premise has been called into serious question by subsequent court decisions. In a challenge to the HHS's 2019 conscience regulation, a court rejected the application of this same legal standard articulated in the NOV to the Church Amendments, holding that HHS exceeded its authority in promulgating a regulation that departed from the burden shifting Title VII framework by requiring employers to allow employees to decline to participate in procedures, even if it would constitute an undue hardship to the employer, and even if the employer offered a reasonable religious accommodation. New York v. HHS, 414 F.Supp.3d 475, 536 (S.D.N.Y. 2019) (appeal in abeyance); see also Washington v. Azar, 426 F.Supp.3d 704, 722 (W.D. Wash. 2019) (vacating the rule in its entirety and agreeing with the New York court that "the APA violations are numerous, fundamental, and far-reaching."). No court has upheld the application of the standard that was applied in the NOV to the Church Amendments. As such, the legal issues surrounding the standard applied in the NOV are serious enough to warrant a withdrawal of the NOV.
Based on these subsequent legal developments and concurrent with the Department of Justice filing today, we are withdrawing the August 28, 2019 NOV and will continue to evaluate the underlying complaint. OCR takes seriously its role in protecting the rights of medical providers, including those protected by federal conscience laws. We are taking these actions to ensure the statutes protecting providers are applied in accordance with applicable law.
OCR is providing a copy of this letter to the Complainants' counsel.
Robinsue Frohboese, J.D., Ph.D.
Acting Director and Principal Deputy
Office for Civil Rights
U.S. Department of Health and Human Services