Nursing assistants – Photo: Truckee Meadows Community College, via Wikimedia.
LGBTQ groups and their allies are eviscerating the Trump administration for creating a new agency arm designed to ensure health care workers are exempt from having to provide certain treatments or perform procedures based on their personal moral or religious objections.
On Thursday, the U.S. Department of Health and Human Services announced the creation of a new “Conscience and Religious Freedom” division within the department’s Office for Civil Rights that will be tasked with ensuring that hospitals are complying with the law. As such, any hospital that disciplines or fires a health provider with a moral or religious objection for refusing to provide care could be penalized or sued for violating their employees’ First Amendment rights.
On Friday, the Trump administration introduced a new rule that allows for such religious exemptions, which the new division will be tasked with enforcing.
Such a broad interpretation of the First Amendment, and the idea behind right of refusal laws could result in providers refusing to treat women seeking abortions, people seeking sterilizations, transgender people seeking transition-related health care, or any patient whose lifestyle or life choices a nurse or doctor finds objectionable.
Louise Melling, the deputy legal director of the American Civil Liberties Union, said the HHS rule was “doubling down on licensing discrimination against women and LGBT people, all in the name of religion.”
Nonetheless, Melling said civil rights advocates are all too familiar with how this newly created division will act and what their ideology will be. She noted that the administration has previously demonstrated this by adopting rules to allow businesses run by people who oppose abortion rights to refuse to comply with laws that they provide coverage for contraception for their employees.
“They are prioritizing providers’ beliefs over patients’ health and lives,” Melling said. “This administration isn’t increasing feedom — they’re paving the way for discrimination.”
Vanita Gupta, the president and CEO of The Leadership Conference on Civil and Human Rights, echoed Melling’s sentiment, saying the new division within HHS’ Civil Rights Office is “unneeded.”
“Yet again, the Trump administration is seeking to create a license to discriminate, this time for health care providers,” Gupta said in a statement. “This proposed rule would allow providers to ignore their medical training and guidelines, and instead allow their personal religious beliefs to determine how a patient should be treated. …These changes will unnecessarily put lives at risk.”
The Center for American Progress released a report finding that such a religious exemption would likely compromise the ability of LGBTQ people, especially those who are transgender, to access competent, high-quality health care. A 2017 survey by the organization found that nearly 1 out of 3 transgender people surveyed said that a doctor had refused to see them because of their gender identity. And 12 percent said that a health care provider had refused to provide them with treatment related to their gender transition.
“These data show the breadth of the discrimination that LGBTQ people, and especially transgender people, experience in health care settings,” Shabab Ahmed Mirza, a co-author of the report, said in a statement. “From avoiding doctor’s offices out of fear of discrimination, to hearing demeaning language, to being denied care outright, it is no wonder that LGBTQ people report poorer health than their peers.”
Many civil rights and LGBTQ advocates claim that the push for religious exemptions seems to be coming from Roger Severino, a former conservative think tank employee who heads the HHS Office for Civil Rights. Severino has been outspoken on his belief that health care workers need to be exempt from performing procedures that they object to, and has often rejected the notion that gender is any different from a person’s biological sex at birth.
In a rare move commenting on policy, the Victory Institute, which seeks to elect out LGBTQ leaders to public office, issued a statement specifically singling out Severino’s efforts, while also noting he is “just one of many” recent Trump administration appointees who have demonstrated or voiced anti-LGBTQ animus.
“Severino is an anti-LGBTQ activist who has long fought against equality for our community, ignoring science and reality to justify his crusade,” Annise Parker, the president and CEO of the Victory Institute, said in a statement. “His politicization of healthcare takes us down a dangerous path that will harm not just the LGBTQ community, but other communities targeted by those opposed to equality. …Personnel is policy, and the lack of LGBTQ perspectives and voices in this administration inevitably leads to policies that target and harm our community.”
Rebecca Isaacs, the executive director of Equality Federation, noted that the exemption could go so far as to allow people living with HIV to be denied life-saving antiretroviral treatment if their doctor or a nurse on duty objects to their sexual choices.
“It’s unconscionable that anyone should be afraid that when they are sick or in need of urgent medical care they could be turned away,” she said. “Freedom of religion is important to all of us, but it should not equate to a license to discriminate against those in need.”
The religious exemption rule was also criticized by National Nurses United, a progressive health care worker advocacy organization. Jean Ross, the organization’s co-president and a registered nurse, noted that allowing the exemption would likely decrease the public’s perception of nurses and irreparably harm patient-provider relationships. She also noted that the exemption may conflict with the oath that many medical providers take, as well as laws already on the books requiring that providers deliver basic care to those who seek them out.
“Nurses, year after year, are viewed as the most trusted profession, precisely because patients have confidence that when a patient is ill, injured, and in need of medical care they can depend on a registered nurse to advocate for them,” Ross said.
“With this plan, the Trump administration directly targets that trust, as well as fuels further anxiety for patients when they are at their most vulnerable that they will be able to receive proper care from RNs and other healthcare workers. That is disgraceful.”
On the political front, the move was criticized by both the Human Rights Campaign — which has been steadfastly critical of the Trump administration — and the Log Cabin Republicans.
“LGBTQ people need the Department of Health and Human Services to enforce non-discrimination protections in federal health programs,” HRC Legal Director Sarah Warbelow said in a statement. “Every American deserves access to quality health care, and that should not be determined by the personal opinions of individual medical providers or administrative staff.”
“It’s amazing how the same people who regularly deride the LGBT community for seeking ‘special rights’ are now reveling in the creation of special rights for themselves,” Log Cabin Republicans President Gregory T. Angelo added. “Log Cabin Republicans is proud to support both religious liberty and LGBT equality, but the Conscience and Religious Freedom Division at HHS seems primed to tip the scales in favor of overly broad, vague, and frivolous complaints that disproportionately impact the LGBT community in matters — quite literally — that could mean life and death.”
Transgender Law Center Executive Director Kris Hayashi promised legal action against the administration.
“This extreme new HHS rule will quite possibly cost lives by giving medical providers cover not to treat people they disagree with, no matter how life-threatening or urgent the medical need,” Hayashi said. “The rule grants an illegal license to discriminate against transgender people who come to the doctor or emergency room for help when our lives are in danger due to sickness, violence, or injury. It’s also an attack against all people, including many in the transgender community, who rely on critical care ranging from reproductive services to emergency services to HIV medication.
“The agency charged with protecting our health is now inviting providers to deny life-saving medical care to people based on who we are,” Hayashi added. “Once again, the Trump-Pence administration has shown they will do everything in their power to undermine the health and survival of transgender people. We will see them in court.”