The Department of Health and Human Services (HHS) announced last month that it is close to finalizing a conscience protection rule that would allow people to discriminate in health-care settings under cover of law.
The final rule is at the Office of Management and Budget for review and not available to the public. But under the draft rule, which has been made public, health-care providers would be able to refuse to provide treatment, referrals, or assistance with procedures if these activities would violate their stated religious or moral convictions. The deliberately vague language could apply to everyone from receptionists refusing to book appointments to scrub nurses refusing to assist with emergency surgery.
This could be devastating for many marginalized people in the country seeking health care. But it could be especially dangerous for LGBTQ people, who have fought hard to establish legal protections that would guard them against exactly these kinds of denials. When your very body and existence are considered objectionable, seeking health care at the best of times can be dangerous.
“Trans and gender nonconforming people already face really severe discrimination in health-care settings,” said Bridget Schaaff, If/When/How’s reproductive justice federal policy fellow at the National LGBTQ Task Force. Rules like these “are going to make this even harder.”
HHS already finalized two rules that would allow businesses and other entities, like churches, to refuse to pay for insurance coverage that includes birth control or abortion services if it violates their religious or moral convictions. Enforcement of these rules is currently on hold due to legal decisions, with judges in Pennsylvania and California ruling in favor of challengers. The agency also recently proposed another rule that would create a significant administrative burden for insurance companies that include abortion in their policies, effectively incentivizing them to drop this coverage.
Now, this latest regulation would “ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.” These updates to existing precedent spread across 25 laws and regulations would substantially extend the reach of “conscience protections.” A doctor might, for example, refuse to give a pregnant patient information about an obstetrician if they suspect the patient might request an “objectionable” treatment like abortion from that obstetrician. The HHS Office of Civil Rights would be responsible for enforcing what critics call a “right to discriminate.”
The draft rule draws on laws like the Religious Freedom Restoration Act to argue that health-care providers and other entities should not be compelled to participate in activities like performing abortions or sterilizations, providing birth control, participating in physician-assisted suicide, or being “morally complicit” in other health care that violates religious beliefs. This includes activities like requiring crisis pregnancy centers to post signage with comprehensive information about full-spectrum reproductive health services. The extension of conscience protections to moral attitudes as well as religious ones offers even more ammunition for those who want to refuse health care.
The Family Research Council, Americans United for Life, and United States Conference of Catholic Bishops have all identified regulations like the draft rule as a priority. Lobbying from groups like these led HHS to develop an entire division on “conscience and religious freedom” that focuses explicitly on the concerns of a vocal minority of conservative Christians. A 2017 National Women’s Law Center survey found that 61 percent of voters oppose religious exemptions like these.
Reproductive rights and justice communities are concerned about the clear implications of a rule that could exacerbate an already-documented problem: health-care refusal for people seeking reproductive health services, including abortion and birth control. This issue is particularly extreme at Catholic hospitals, which are experiencing explosive growth around the United States. Abortion in particular has been repeatedly targeted for “conscientious objection,” for example by nurses who refuse to assist in abortion and sometimes even miscarriage care.
And for members of the LGBTQ community, especially trans people, the stakes of this rule are high. One in four respondents to the 2015 Trans Survey had experienced insurance denials associated with their gender, while one in three encountered “negative experiences” like being refused treatment. In a 2017 Center for American Progress survey, 8 percent of LGBQ people were denied care because of their perceived sexual orientation.
The “conscience protections” outlined in the draft rule could include things like a pharmacist refusing to fill a prescription for hormones or a surgeon declining to perform a transition-related procedure. But they could technically apply even more widely, and the lines may only become clear in court. As long as a provider could come up with a “moral” reason to decline care, it might be hard for someone to push back, whether it’s a tooth cleaning or breast cancer treatment. A pediatrician could refuse to care for the child of lesbian parents. The rule as drafted did not contain guidance about emergency situations, raising concerns that a lethal refusal of care — such as an ambulance crew leaving a trans woman to die — could be justified.
Discrimination already discourages LGBTQ people from seeking health care, which exacerbates their health disparities; LGBTQ people are more likely to experience HIV infection, mental health conditions, and complications related to deferred preventive care. Disability is also more prevalent in the trans community than the cis population, including disabilities that may require complex, lifelong care, like mental illnesses.
Thanks to systemic prejudice, LGBTQ people are also much more likely to live in poverty, especially trans women of color; the majority of Black trans people in Washington, DC, earn less than $10,000 annually. Poverty is a known driver of health-care disparities. Trans people are also un- or under-insured at much higher rates than the general population — one reason Section 1557 of the Affordable Care Act, which bars discrimination on the basis of race, sex, disability, age, or national origin, was so important. The Obama administration interpreted Section 1557 to mean that insurers could not deny coverage to transgender people on the basis of their gender identity.
Section 1557, said Schaaff, is directly at risk from rulemaking like this. “It’s a back door to discriminate,” they say, noting that the Obama administration very deliberately did not include religious exemptions in its rulemaking on discrimination in health-care settings, while it did explicitly include gender identity.
Within months of Donald Trump’s inauguration, the HHS had removed the “gender identity” language from its website and indicated an intent to stop enforcing gender identity discrimination complaints. By tasking its civil rights office with enforcement of this rule, HHS effectively says enshrining the right to refuse care is a civil rights matter — for the person denying the care, not the vulnerable patient.
Even if the rule didn’t allow objectors to deprive patients of access to information about health-care providers who will treat them, people limited by geography, insurance coverage, the inability to pay out of pocket, and emergency situations may be unable to find anyone else. This could be particularly dangerous for those with urgent needs, like people seeking abortions in states with narrow legal windows to do so, trans people in mental health crisis, or patients experiencing emergent complications from chronic illnesses or disabilities.
“By giving legal cover for discrimination, the Trump-Pence administration is encouraging providers to deny people health care based on their own homophobia or misogyny, while worsening health care access and forcing some to forgo care altogether,” Dr. Leana Wen, president of Planned Parenthood Federation of America, told Rewire.News in a statement.