The U.S. Department of Health and Human Services (HHS) is doubling down on so-called conscience protections that give an out to health-care providers who don’t want to treat LGBTQ patients or provide reproductive health care, including contraception, miscarriage management, and abortion care.
The Trump-era HHS, stacked with anti-choice extremists, on Thursday announced the launch of the Conscience and Religious Freedom Division, a wing of the agency’s Office of Civil Rights. The division is a precursor to an imminent rule expected to bolster such “religious freedom,” or religious imposition, measures at the expense of vulnerable patients. Its launch comes a day before Friday’s annual March for Life in the nation’s capital.
Politico first reported the news of the rule, which is listed as pending review within the White House’s Office of Management and Budget—the final regulatory step before its release. A new “conscience and religious freedom” landing page within HHS’ sprawling online presence already allows people to file complaints about alleged violations. The landing page includes a photo of a person who appears to be a female Muslim doctor—even though patients living at the intersections of, say, a marginalized religion and race, gender, sexuality, income, ability, and immigration status are most likely to bear the consequences of the agency’s actions in their health-care access and outcomes.
The purpose is to bully religious minorities, Black and brown communities, immigrants, LGBTQ people, and those who don’t conform to what society deems respectable. We do not need this.
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— PrestonMitchum (@PrestonMitchum) January 18, 2018
Roger Severino, the virulently anti-LGBTQ head of the HHS civil rights office, said the new division would “help guarantee that victims of unlawful discrimination”—health-care providers with objections to caring for disproportionately vulnerable patients—”find justice.”
“No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions,” Severino said in a statement. He emceed a ceremony unveiling the agency’s plans at HHS headquarters on Thursday morning.
Severino’s assessment is notable in two respects. First, the HHS civil rights chief omitted the fact that LGBTQ people are most often the real “victims of unlawful discrimination” in the health-care arena. LGBTQ people routinely face “discrimination and mistreatment” from their providers, according to new data from the Center for American Progress. The discrimination and mistreatment results in “delays or denials of medically necessary care”:
For example, after one patient with HIV disclosed to a hospital that he had sex with other men, the hospital staff refused to provide his HIV medication. In another case, a transgender teenager who was admitted to a hospital for suicidal ideation and self-inflicted injuries was repeatedly misgendered and then discharged early by hospital staff. He later committed suicide. Discrimination affects LGBTQ parents as well: In Michigan, an infant was turned away from a pediatrician’s office because she had same-sex parents.
Second, the HHS-led rollback of the birth control benefit created a hotly contested moral exemption for reproductive health care. Severino is now further opening the door for doctors, clinicians, pharmacists, and other providers to turn away patients based on who they are, including their gender identity and sexual orientation, and what care they require.
This kind of state-sanctioned discrimination won’t be easy for the administration to pull off.
“Thankfully, HHS cannot eliminate the right of individuals to sue or to challenge discrimination in court,” Harper Jean Tobin, director of policy for the National Center for Transgender Equality, told Rewire. “What they can do is promote the belief that discrimination is legal. And encourage providers to discriminate and discourage patients from standing up for their rights.”
Under the Affordable Care Act, Section 1557 expressly prohibits anti-transgender discrimination and refusals to provide reproductive health care. The Trump administration stopped defending Section 1557 from GOP state-level legal challenges, but the underlying law remains in effect. It’s an important tool in combating discrimination in the delivery of health-care services.
“Ultimately, 1557 and our other civil rights laws that apply to health care, they give rights to patients that HHS can’t take away,” Tobin said. “The courts, when it comes to discrimination against transgender people, have been quite clear. The courts overwhelmingly say discrimination against a transgender patient is illegal.”
Expect the administration to push the boundaries of law, according to Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center.
Trump-era officials “have been willing to take the law as far as they can and then violate the law [in order] to enshrine one set of religious beliefs,” Borchelt said in an interview. “They don’t care what the harm is to individuals. Whatever the [George W.] Bush administration did, I think we would expect to see it taken at least one to two steps further, if not as far as possible beyond that.”
At HHS headquarters, Severino credited President Trump’s religious imposition executive order in May with setting the stage for the wide-scale discrimination now coalescing under his watch.
Acting HHS Secretary Eric Hargan also paid homage to Trump. With the Conscience and Religious Freedom Division, “we’re taking a significant step to implement President Trump’s vision,” Hargan said at the ceremony.
Hargan promised the administration would “vigorously enforce federal laws [in the form of] robust protections for religious freedom.”
Federal and state laws already provide a web of conscience protections for health-care workers. For example, the “Church Amendments” allow people and entities to raise religious or moral objections to performing or assisting in abortion or sterilization procedures. The Weldon Amendment protects physicians, hospitals, and insurance plans from repercussions for refusing to pay for, provide, or offer referrals for abortions. Another law, the Public Health Service Act, prohibits “abortion-related discrimination in governmental activities regarding training and licensing of physicians.”
Even the Affordable Care Act contains provisions protecting the conscience rights of health-care providers.
Conscience protections have long undermined reproductive health care, whether that’s in the form of contraception or common medications and procedures to facilitate a miscarriage or an abortion.
Things that have happened before in the name of religious/moral beliefs:
→ Hospitals refusing to treat or refer someone who needs an abortion
→ Women suffering miscarriages being denied care they need
→ Health care providers refusing care to transgender people
— NWLC (@nwlc) January 18, 2018
Until Thursday, none of these protections provided health-care workers with the right to discriminate against LGBTQ people in the delivery of care.
That’s what the Conscience and Religious Freedom Division, and the imminent rule, are poised to do, along with taking another swipe at reproductive rights, health, and justice.
“This decision—not so coincidentally timed around the March for Life—is a cheap attempt by President Trump to pander to ultraconservative special interests that got him into power,” Catholics for Choice Vice President Sara Hutchinson Ratcliffe said in a statement. “Time and time again, we have seen this administration radically redefine religious freedom to impose one set of ultraconservative beliefs on all Americans.”