A regulation allowing individuals and health care organizations to opt out of providing health care services if they object on religious or moral grounds has been finalized by the Department of Health and Human Services. That exemption can pertain to abortion, sex reassignment surgery and assisted suicide, among other procedures.
In unveiling the final rule, the Trump administration insisted it does not allow discrimination against women, LGBTQ people or religious minorities. But advocates for reproductive rights and LGBTQ rights are questioning whether the administration’s rule is constitutional, and worry it will lead to women and LGBTQ people being denied health care.
On Thursday, San Francisco City Attorney Dennis Herrera brought a lawsuit against the Trump administration claiming the new rule would reduce access to critical health care.
“People’s health should not be a political football. The intent of this new rule is clear: it’s to prioritize religious beliefs over patient care, thereby undermining access to contraception, abortion, HIV treatment and a host of other medical services,” Herrera said in a statement.
Herrera has asked the U.S. District Court for the Northern District of California to postpone the rollout until further judicial review.
This reversal of an Obama-era policy is part of a larger push by conservatives to ramp up anti-abortion efforts and enshrine in law so-called “religious liberties” that allow people to deny services to LGBTQ Americans.
How did we get here?
Opponents of abortion have pushed for decades to recognize the religious rights of health care workers, and to address conflicts between their beliefs and professional requirements related to abortion. The landmark Roe v. Wade ruling that made abortion legal nationwide in 1973 also inspired the rise of conscience clauses in response, starting with the Church Amendment that Congress passed the same year.
This latest conscience rule is part of a larger effort by the Trump administration and conservatives to implement policies focused on “religious liberty.”
“My administration has strongly defended religious liberty — two words you haven’t heard too much about, but now you are hearing it all the time,” Trump said Thursday when he announced the new rules during a National Day of Prayer service.
In May 2017, Trump signed an executive order to expand protections around religious liberty. Shortly after, the Office of Conscience and Religious Freedom was created within the Department of Health and Human Services to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom.”
Vice President Mike Pence has been an advocate for religious liberty arguments, even before he joined Trump’s campaign, and he’s a driving force behind the administration’s efforts.
When Trump announced the change affecting “physicians, pharmacists, nurses, teachers, students and faith-based charities,” he motioned toward the vice president, saying, “They’ve been wanting to do that for a long time, right, Mike?”
As Indiana’s governor, Pence signed a law in 2015 that prohibited the state government from impinging on someone’s religious beliefs. The law was later scaled back after an outcry from gay rights advocates who argued it could be used to discriminate against the LGBTQ community.
That same year, conservatives made a nationwide push to pass religious freedom bills after the Supreme Court’s Burwell v. Hobby Lobby decision ruled that for-profit companies could refuse to follow an Affordable Care Act mandate covering contraceptives based on religious grounds.
Under the federal health law, a medical office or insurance company provider also had to provide their services to everyone, regardless of their race, color, sex, national origin, age, disability or sex — and former President Barack Obama extended the protections to include gender identity months before he left office. Christian Medical & Dental Associations, other faith-based organizations, and five states sued, and an injunction has been in place since early 2017.
“It wasn’t that we weren’t willing to take care of transgender patients. They said that if we provided a service or a medication for anyone, we had to provide it for a transgender patient on demand,” Dr. David Stevens, CEO of the Christian Medical & Dental Associations, said. “If you gave hormones for birth control, you had to give hormones to an 11-year-old [for transition therapy]. If you didn’t do this, then you lost all your Medicaid and Medicare funding and the patient could sue you.“
What has changed under the new rule?
The new rule generally restores regulations from the George W. Bush era, but also changes definitions to allow health care providers to refuse services on broader grounds.
A health worker can object to not only performing an abortion, for example, but also to participating in anything “with a specific, reasonable and articulable connection” to an abortion procedure. That could include counseling, referrals, or even scheduling appointments for abortions, for example.
The same concept could apply to health care providers’ decisions not to treat transgender patients seeking sex reassignment surgery or hormone therapy.
AIDS United warned the exemptions could also extend to HIV treatments and naloxone, which is used as a reversal drug for opioid overdoses.
Conscience protections are now technically enforceable for those who object to comprehensive approaches to combating HIV/AIDS, which can include medical recommendations for condoms. Members of the LGBTQ community fear the rule may extend even further and make health care harder to come by.
“It encourages discrimination in health care against already vulnerable patient populations, which includes LGBTQ people, people living with HIV and women seeking reproductive services,” said Dr. Gal Mayer, president of GLMA: Health Professionals Advancing LGBTQ Equality. “This would have a large impact in places where homophobia and transphobia and misogyny are the features of the community.”
Many health care workers automatically opt out of performing personally objectionable services by going into specialties that avoid such situations altogether. But other workers do find themselves being asked to perform services contrary to their beliefs. In Oregon, where assisted suicide is becoming more common, a doctor might be directed to provide euthanasia medication, for example. Likewise, faith-based medical workers might object to providing contraceptives such as Plan B. But under Trump’s rule, providers and institutions could decline.
Organizations within the U.S. that receive federal funds from Health and Human Services, through programs like Medicare and Medicaid, are affected, as well as international organizations such as United Nations agencies. HHS also has the ability to enforce the rule as it would other civil rights abuses, by withholding funding or referring the case to the Department of Justice if an organization is not seen as adequately accommodating employees’ beliefs.
Federal law, specifically Title VII of the Civil Rights Act, already requires employers to reasonably accommodate religious objections unless it would impose an undue hardship on the employer. The HHS rule does not take employers’ needs or access to care into consideration, said University of Pittsburgh bioethics professor Mark Wicclair. If a patient lives in a rural area where all providers object to abortion, for example, no one would be required to provide that procedure. The rule is vague about whether a worker could opt out of a medically necessary procedure, even in an emergency situation.
Forty-six states already have laws or policies in place that allow some health care providers to refuse an abortion, according to the Guttmacher Institute, a research institution that advocates for abortion rights.
Researchers say that while these regulations are important for ensuring health care workers are not betraying their personal beliefs, they risk prioritizing providers’ rights over patients’ rights.
Does the conscience rule violate a doctor’s duty?
Though conscience rules have multiplied since the 1970s, supporters of these early laws said they weren’t being enforced, meaning medical professionals could still be called on to perform procedures to which they objected.
“A right of conscience isn’t really about refusing to treat someone because you don’t like or approve of that patient’s behavior, their attitudes and their beliefs,” said Stevens, the Christian Medical & Dental Associations CEO. “You exercise right of conscience when you’re being asked or required to participate in or facilitate an action that violates your ethical, moral and religious beliefs.”
In 2009, Christian Medical & Dental Association sponsored a nationwide survey that found 39 percent of faith-based medical professionals reported feeling pressure from, or discrimination by, faculty or administrators related to their moral, ethical and religious beliefs. Ninety-one percent said they would stop practicing medicine altogether rather than violate their conscience.
HHS cites this survey as part of the rationale behind the new rule, which outlines the scenarios where set religious and moral objections can be applied. This legal journey started with the debates around abortion and sterilizations decades ago, but the new conscience rule extends into other realms of health care.
For example, the rule now offers enforcement for federally funded providers of pediatric vaccines who want to comply with state laws that allow religious or other exemptions for immunizations. That provision means a doctor’s office could lose its access to federal funds from Medicaid if the head of a clinic calls on its employees to administer vaccinations and one of its doctors refuses.
The new conscience rule also covers medical referrals — meaning a health worker who objects to providing care can also forgo recommending another doctor who might be able to perform the procedure. Dr. Donna Harrison, executive director of the American Association of Pro-Life Obstetricians and Gynecologists, compared the situation to asking a doctor to write a morphine prescription when they know the patient has an opioid addiction.
“We are not denying care to anyone. But to participate in referring [abortions] would be like the doc saying ‘O.K., I’m not going to write you the prescription for morphine, but here’s the name of a drug dealer,’” Harrison said. “That’s material cooperation in an act that is directly harmful to the patient.”
Harrison added that the conscience rule does not prevent separating a mother and a fetus at any gestational age as long as the mother’s life is at stake. She objects to elective abortions. Stevens made the same argument for LGBTQ care, saying under the rule faith-based doctors would take care of all people, but object to elective procedures like gender transition therapy.
Nancy Berlinger, a research scholar at the bioethics research institution the Hastings Center, said even if a patient is provided care, broadly applied conscience objections can lead to certain medical procedures becoming stigmatized, leading to worse treatment or deterring patients from seeking treatment at all.
“Conscience objections need to be balanced with equivalent rights to patients and providers because every person is meant to be equal under the law,” Berlinger said.
Mayer echoed that the burden will fall hardest on patients who live in rural places, where a medical refusal could cause disruption in medication and delays in diagnosis. He cited the 2001 documentary “Southern Comfort,” wherein a transgender man in Georgia developed ovarian cancer and was denied medical services. By the time, he found a doctor who was willing to treat him, the cancer was too advanced to cure.
But Mayer said the denial of referrals in any context — whether for abortions or LGBTQ health care — “speaks volumes to the underlying hatred of this kind of policy.” He cited surveys that show transgender people are more likely to be at risk for suicide if they’ve had a discriminatory experience in health care.
What doctors are saying is not that they deserve “protections from treating [patients] equally,” but that these patients do not deserve to get care, Mayer said.