The Department of Health and Human Services today announced its final “conscience rule” excusing health care personnel from participating in procedures to which they have religious or moral objections.
Activists have warned that the rule could jeopardize health care for LGBTQ people, such as those seeking gender-confirmation procedures or HIV treatment and prevention services, as well as women seeking contraception or abortion.
A draft of the rule was released in January 2018 so that HHS’s Office for Civil Rights could receive comments from the public on it. Donald Trump announced the finalization of the rule during a Rose Garden speech this morning for the National Day of Prayer, and HHS published the final rule on its website.
“To protect this [religious] heritage my administration has strongly defended religious liberty… just today we finalized new protections of conscience rights of physicians, pharmacists, nurses, teachers, students, and faith-based charities. We’ve been wanting to do that for a long time, right, Mike [Pence]?” Trump said at the event. (Video of his speech is below; his remarks about the conscience rule come at about the 31-minute mark.)
“This final rule replaces a 2011 rule that has proven inadequate, and ensures that HHS implements the full set of tools appropriate for enforcing the conscience protections passed by Congress,” says an HHS press release. “These federal laws protect providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide. It also includes conscience protections with respect to advance directives.” Notably, the Office for Civil Rights is run by Roger Severino, who has a history of anti-LGBTQ activism.
Civil rights advocates have feared that the new rule will allow even those marginally involved in providing health care to opt out because of religious objections, therefore making it more difficult for patients to receive care. This rule could severely affect LGBTQ people living in rural areas where there are few health care options.
“In an attempt to justify more discrimination against transgender people, HHS minimizes the very real pain exemptions like these have caused transgender people,” Gillian Branstetter, media relations manager at the National Center for Transgender Equality, told The Advocate via email.
“I would note the case of Evan Minton, a transgender man who was denied a hysterectomy shortly before the surgery after the religiously affiliated hospital at hand canceled the treatment,” she said. “Notably, the doctors and surgeons actually performing the procedure had no issue with doing so. A very similar case was just filed in California last March and another was filed in New Jersey in January.
“We’re confident this rule will make the lives of transgender people across this country harder. No one should have to check the religious affiliation of a hospital in order to make sure they can get the care their doctors have prescribed them. Religious liberty is a bedrock principle for all Americans — including transgender people — but this regulation is a perversion of that principle.”
Equality California, the nation’s largest statewide LGBTQ rights organization, quickly issued a statement denouncing the rule. “For two years, the Trump-Pence administration has relentlessly attacked LGBTQ people — including transgender service members, children and workers, said Executive Director Rick Zbur. “But today’s attack is one of their most heartless and dangerous yet. President Trump just stood in front of the White House and told millions of LGBTQ Americans that they should be denied lifesaving health care simply because of who they are or whom they love. That is immoral; it is heartless; it is un-American. Someone else’s personal beliefs should never be used as a license to discriminate. Period.”
“The Trump-Pence administration’s latest attack threatens LGBTQ people by permitting medical providers to deny critical care based on personal beliefs,” David Stacy, government affairs director at the Human Rights Campaign, said in a press release. “The administration’s decision puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity. Everyone deserves access to medically necessary care and should never be turned away because of who they are or who they love.”
The HRC release noted that “in practice, the broad reach of the rule could allow health care providers to refuse to provide not only abortion and sterilization procedures, but also to deny treatment or preventative care for AIDS or HIV, hormone therapy treatment and transition related care and in-vitro fertilization for lesbians, single women or interfaith couples.”
Louise Melling, deputy legal director at the American Civil Liberties Union, issued a statement as well: “Once again, this administration shows itself to be determined to use religious liberty to harm communities it deems less worthy of equal treatment under the law. This rule threatens to prevent people from accessing critical medical care and may endanger people’s lives. Religious liberty is a fundamental right, but it doesn’t include the right to discriminate or harm others. Denying patients health care is not religious liberty. Discriminating against patients based on their gender or gender expression is not religious liberty. Medical standards, not religious belief, should guide medical care.”
“Access to health care can be life-or-death,” said a statement sent by Lucas Acosta and Elizabeth Renda of the Democratic National Committee. “But rather than seek to improve our health care system, the Trump-Pence administration is determined to strip away access to health care from women, people with HIV/AIDS, and LGBTQ people, particularly transgender and gender-nonconforming individuals. This license to discriminate is unethical and dangerously undermines the health of some of the most vulnerable among us.
“Every individual deserves access to quality health care and lifesaving emergency services. No one should ever be refused medical care because of who they are. It’s clear Republicans still haven’t learned what the 2018 midterm elections mandated — the American people want more access to health care, not less.”
And this from Mary Alice Carter, executive director of Equity Forward: “Religious freedom doesn’t mean carte blanche to discriminate, especially in a health care setting. People should never fear that they’re going to be denied care because of their gender, who they love or their past medical decisions. Today’s rule codifies discrimination and it will result in deep harm to patient care. [HHS Secretary] Alex Azar and Roger Severino should be ashamed. This is exactly the opposite of what our health department should stand for.”
The administration is also expected to soon release the draft of a separate rule that is likely to undermine a portion of the Affordable Care Act providing antidiscrimination protections for transgender people seeking health care. Additionally, the Trump administration Wednesday filed a brief in a federal appeals court arguing that the entire ACA is unconstitutional and should be struck down.
This story is developing. Check back for updates.