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Health Care Providers Win License to Discriminate

Trump administration issues “right to deny” service rule with sweeping scope

President Donald Trump in the White House Rose Garden on May 2 announcing the administration’s new “right to deny” health care rule.
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In one of multiple anticipated moves designed to dismantle health care protections for LGBTQ people and women, the Trump administra­tion’s Department of Health and Human Services (HHS) on May 2 announced a final version of a new rule that will give health care workers and institutions the authority to use “religious” or “moral” objections to deny care to patients.

And, the administration is, separately, veiwed as being on the verge of issuing new rules targeting Section 1557 of the Affordable Care Act, which protects patients on the basis of gender identity. Those rules changes would likely target transgender people more directly.

President Donald Trump, speaking from the Rose Garden at the White House on May 2, said “physicians, pharmacists, nurses, teachers, students, and faith-based charities” are protected under the new rule, and the administration reinforced its commitment to enforce dozens of laws aimed at protecting “conscience” rights.

The new rule is broad and leaves open numerous questions about how far health care providers could go in their quest to discriminate. In a statement, the Human Rights Campaign warned that the new rule could not only scale back abortion rights, but also target lesbians who seek in-vitro fertilization care, single women, interfaith couples, hormone therapy, transition-related care, and HIV/ AIDS prevention and treatment.

The rule was poposed in January 2018 and has already gone through the customary commenting period during which the public was allowed to voice comments, many of which related to queer-related care. On page 153 of an HHS document pertaining to the rule, the agency noted a series of court cases involving gender dysphoria and stated, “In the event the Department receives any such complaints, the Department will consider them on a case-by-case basis,” further adding to uncertainty surrounding the future of transgender-related care.

The document dismissed comments expressing concern that LGBTQ people could suffer from discrimination in their health care under the new rule. HHS said one of those comments was “general in nature” and “did not assist in estimating” how it would affect religious beliefs or moral convictions, while the agency said another comment identifying health disparities faced by LGBTQ people “did not explain the extent to which such disparities are the product of the lawful exercise of religious beliefs or moral convictions.” The agency argued that studies regarding the way state LGBTQ laws address disparities facing LGBTQ folks do not provide “a reliable basis for inferring an answer to the questions at issue here.”

The administration clearly signaled its policy direction last year when the HHS Office for Civil Rights opened a new Division of Conscience and Religious Freedom and appointed Roger Severino — who previously served at the anti-LGBTQ Heritage Foundation as the director of the DeVos Center for Religion and Civil Society — as its director.

In a written statement, Severino put his own spin on the new rule, saying it “ensures ensures that health care entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience.”

But the announcement elicited vociferous condemnation from health care advocates who say it amounts to a license to discriminate. The Human Rights Campaign’s government affairs director, David Stacy, said the new rule “threatens LGBTQ people by permitting medical providers to deny critical care based on personal beliefs.”

“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,” Stacy added. “Everyone deserves access to medically necessary care and should never be turned away because of who they are or who they love.”

The Leadership Conference on Civil and Human Rights, an umbrella organization for civil rights advocacy groups, also fired back at the administration immediately following the May 2 announcement.

“HHS’s final denial of care rule will substantially harm the health and well-being of many – in particular women and transgender patients,” said Vanita Gupta, the organization’s president and CEO. “The government should protect all patients from discrimination, not make it easier for those in the health care system to discriminate. The rule is also arbitrary and capricious and exceeds the scope of the laws that it seeks to enforce. This rule must be scrapped.”

Further announcements from the administration regarding the unraveling of Section 1557 of the Affordable Care Act are expected within days.

Updated 6:38 pm, May 5, 2019
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