Judge Bastian, in EDWA, just ruled from bench in Washington v. Azar, "conscience rule" #DenialOfCare case, Washington's motion for summary judgment GRANTED, fed gov's DENIED. Rule vacated. Written opinion to follow "later."
Judge agreed with NY's Judge Englemayer decision that (1) it is appropriate to decide on the MSJ; (2) exceeds HHS's statutory authority; (3) rule is arbitrary & capricious for reasons in SDNY opinion; (4) unconstitutional in certain respects.
Judge Bastian said his written opinion will focus on issues in this case that Judge Englemayer didn't address. Also (w/parties' agreement) he said it's no longer urgent to get opinion by Nov 22 when rule was originally set to take effect (just in way of when to expect it).
I'll get out a few more details from the hearing after I land somewhere for lunch.
Hearing began with Judge summarizing his understanding of the case, mentioned that yesterday's ruling from Judge Engelmayer "changed the landscape" (e.g., not the same urgency to get a ruling by Nov 22 when rule was due to take effect.
He mentioned the 4 amicus briefs filed in the case (see our docket here: files.eqcf.org/?p=26931), asked if any of the amici were in court & wanted to present (none were there).
Then judge asked parties to especially address 2 Qs:
• What differences - either in facts or law - btwn this & NY case?
• Given NY yesterday's ruling, do we still have a case?
• What differences - either in facts or law - btwn this & NY case?
• Given NY yesterday's ruling, do we still have a case?
As to Q2: both sides agreed they wanted judge to rule (for example, Washington: if NY ruling reversed, even in part, would leave WA w/out remedy for harm). As to Q1: Washington articulated several issues that it either disgreed w/Engelmayer or he didn't address)
Washington's Asst AG Jeffrey Sprung, in discussing harm of rule, brought specific attention to harm to #transgender patients.
As to trans patients dicrimination, attorney indicated this can be result of some "religious" views on trans people and also how sterilization can be 'byproduct' of some transition-related care and this fact results in denial of care.
Later, when DOJ attorney said the rule doesn't allow discrimination, only allows refusal of some treatments, Judge Bastian: "Discrimination by another name."
When DOJ argued providing greater protection to religious objectors would increase access to care, judge kept pressing atty on how objecting to care would increase care for "LBGTQ community."
Sorry that should read "LGBTQ community." This was exact phrase used. (not lbgtq - I inadvertently slipped in a #bierasure reference that wasn't there)
There were two other points of 'lively' discussion between judge and DOJ attorneys: (1) HHS's evidence of number of (and claim of increas) religious objection complaints. Judge kept pressing them on how they came up with the numbers and exactly how many there were.
DOJ argued (as it has in other cases on this rule) that HHS didn't vet them 'in detail' for, e.g., whether the complaints involved events that would be covered by this rule (many were vaccination complaints) when presenting numbers on the record. Judge: isn't that your job?
Other exchange was when DOJ said if judge were to rule against feds, order should be restricted to just plaintiff here, i.e., only Wash state. Judge: How does that work? The rule applies nationwide.
Judge: How can I say rule doesn't apply in Wash, but does in Coeur d'Alene [Idaho] just to the east? "I'm still a federal judge (last time I looked at that seal)" - referring to E.D.Wash. seal prominently displayed in courtroom
Around 11:00, we took a 15 minute break, he gave each side a few more minutes to say anything more they wanted, then, referring to notes, announced his ruling.
