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LGBTQ Orgs, Others Sue Over Health Care 'License to Discriminate' Rule

Health Discrimination

Several health care organizations, many of them primarily providing LGBTQ and reproductive care, today filed a federal lawsuit challenging a rule recently finalized by the Department of Health and Human Services that allows personnel to opt out of services to which they have religious or moral objections.

The rule is overly broad, granting refusal rights to workers who provide emergency services or those who are only tangentially involved in care, therefore endangering lifesaving health care for many patients, especially those from marginalized populations, the plaintiffs and their lawyers said on a conference call with reporters, adding that it even encourages such refusals. It could jeopardize the care of transgender people, of HIV-positive people, those taking PrEP, patients seeking abortion or contraception, and more, they said. Also, clinics and hospitals that do not comply with the rule stand to lose federal funding.

HHS finalized the rule early in May, and it takes effect July 22. It is separate from another rule HHS is working on, dealing with enforcement of the Affordable Care Act’s prohibition on discrimination against trans people. HHS issued a proposed rule on that matter last week, and it is subject to a period of public comment before it becomes final.

Today’s lawsuit, filed in the U.S. District Court for the Northern District of California, applies to a rule titled “Protecting Statutory Conscience Rights in Health Care,” but the plaintiffs refer to it as the “Denial-of-Care Rule.” The suit “argues that the rule is unconstitutional because it advances specific religious beliefs in violation of the First Amendment; violates patients’ rights to privacy, liberty and equal dignity as guaranteed by the Fifth Amendment; and chills patients’ speech and expression in violation of the First Amendment, all to the detriment of patients’ health and well-being,” according to a press release from the groups involved. “The lawsuit also asserts that HHS violated the federal Administrative Procedure Act in creating the rule by arbitrarily and capriciously failing to consider the impact on patients.”

Lambda Legal, Americans United for Separation of Church and State, and the Center for Reproductive Rights filed the suit, County of Santa Clara vs. U.S. Department of Health and Human Services, in coordination with Santa Clara County, Calif., which runs the nation’s second largest public health care system, and representing Trust Women Seattle, Hartford GYN, Whitman-Walker Health, Bradbury-Sullivan LGBT Community Center, Los Angeles LGBT Center, Center on Halsted, Mazzoni Center, GLMA, Association of Gay and Lesbian Psychiatrists, Medical Students for Choice, and various physicians. Mayer Brown LLP is serving as pro bono counsel.

Federal law already includes protections for health care workers who have a religious or moral objection to providing certain services — for instance, not all doctors have to perform gender-affirmation surgeries or abortions — but this rule broadens the categories of workers who can object to participating in certain procedures or serving certain clients, the plaintiffs and attorneys said. “Even EMTs and administrative staff are encouraged to deny care,” Genevieve Scott, senior staff attorney with the Center for Reproductive Rights, said on the conference call.

“There has always been a balance in place, and this disturbs the balance,” said Jamie Gliksberg, senior attorney with Lambda Legal. She further noted that one way in which trans people’s health care is endangered is through what she calls the rule’s “misuse” of the term sterilization. Roman Catholic health care providers, for example, may object to sterilization for purposes of birth control, but this rule allows for objections for cases in which sterilization is an effect of medically necessary and lifesaving care, such as hysterectomies for transgender men. There have been cases of Catholic hospitals refusing to provide hysterectomies as part of transition surgery, even though the doctors performing the surgeries had no objections.

Sarah Henn, a physician with Washington, D.C.-based Whitman-Walker Health, which primarily serves LGBTQ people and patients with HIV, said many clients of the clinic have experienced discrimination elsewhere, and this will only intensify with the new rule. There was a transgender woman who waited a week to have her tonsillitis treated because she feared discrimination because of her gender identity, Henn said. Local pharmacies have refused to fill prescriptions for Truvada, a drug used in HIV prevention, because of objections to the clients’ perceived sexual practices, and LGBTQ people have been denied fertility care, she added. “This type of behavior would only be empowered with this rule,” she said.

Santa Clara County has a policy in place to accommodate religious refusals, with proper notice and the possibility of reassignment, but it assures that patient care must come first, county counsel James R. Williams said during the call. One of the many problems with the new rule, he said, is that it has no exception for emergencies.

Staffers could also refuse to even inform a patient about what services their institution offers or about alternative locations where they could obtain those services, participants in the call noted. And they could even refuse to treat a patient based on their religion, or to treat a child based on the parents’ religion.

“Discrimination is always wrong, but in this case it could be deadly,” said Richard B. Katskee, legal director for Americans United for Separation of Church and State.

Health care institutions that fail to comply with the rule stand to lose federal funds, including Medicare and Medicaid payments for services, as well as grants made possible by federal laws such as the Ryan White Act, which provides funding for community-based HIV service organizations.

“Everyone should be deeply worried about this rule,” Scott said.

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