On the heels of creating a new conscience division at the Department of Health & Human Services, the Trump administration has proposed a new religious exemption that critics say would allow widespread discrimination against women seeking abortions and against LGBT people.
Camilla Taylor, senior counsel for Lambda Legal, told the Washington Blade the proposal is “a travesty, outrageous” in terms of its potential to allow denial of medical services for LGBT people.
“It undoubtedly will result in increased denials of service to LGBT people,” Taylor said. “It’s intended to facilitate federally funded health care providers denying service not just to LGBT people, but to women and other vulnerable groups.”
Mara Keisling, executive director of the National Center for Transgender Equality, said in a conference call with reporters the proposal ignores federal laws against discrimination in health care.
“The Department of Health & Human Services … proposed a regulation that goes well beyond existing laws to create sweeping, dangerous exemptions that would encourage health care providers to pick and choose which patients they will and won’t treat,” Keisling said.
The language of the 216-page proposal is geared more toward allowing medical providers to deny abortion-related services on the basis of religious objections, but it contains broad language allowing for exemptions for any reason as well as code words critics say are intended to deny LGBT people medical services.
A provision allowing for exemptions on “sterilization” procedures, for example, is seen as a slur meant to include gender reassignment surgery for transgender people. Other provisions condoning religious counseling are construed as allowing federal payments for widely discredited “ex-gay” conversion therapy.
Taylor said the although rule is specific to abortion, much of the broader language in the proposal would impact access to health care for LGBT people.
“It allows federally funded accredited health care providers to deny services on religious or moral beliefs, whatever the hell that means,” Taylor said.
The proposed rule comes one day after the creation of the Conscience & Religious Freedom Division with the HHS Office for Civil Rights, which has been panned as a tool for enabling the kind of denial of services enabled in the religious freedom rule.
“It’s weaponizing the Office of Civil Rights within HHS to target people for denial of health care at taxpayer expense,” Taylor said.
On the same day as the proposed rule was published, HHS announced a similar reversal of Obama-era policy to allow states to limit access to Medicaid to health institutions, including Planned Parenthood, that provide services to which the states object.
In contrast to the Trump administration, the Obama administration issued a rule interpreting the provision barring sex discrimination under the Affordable Care Act to ban medical providers from discriminating against transgender patients or women who have had abortions. After a legal challenge, however, HHS was enjoined from enforcing that rule as a result of a court order issued by U.S. District Judge Reed O’Connor in Texas.
Even with the Trump administration’s proposed rule, the provision of Obamacare barring sex discrimination, Section 1557, remains in effect. Individuals who feel they faced anti-LGBT discrimination in the health care system still have a private right to sue in federal court under that underlying statute.
Taylor, however, said many courts have put these lawsuits on hold in anticipation of new regulations coming from the Trump administration.
“It’s unclear what remedy people will have in court,” Taylor said. “We would argue that those courts should take action, should remedy the discrimination.”
The proposed rule isn’t yet in effect. The proposal allows for a comment period of 60 days, which will proceed the finalization of the rule at a later time.
As such, many LGBT legal groups said at this time they’re unable to sue the federal government over the rule and will wait until the rule is made final.
Shannon Minter, legal director for the National Center for Lesbian Rights, said no litigation against the proposal is planned at this time.
“There is nothing in the proposed rule that specifically targets LGBT people, though some of the broad proposed definitions would open the door to potential discrimination against LGBT people and others,” Minter said. “We are still analyzing the potential ramifications. Especially since the rule is not yet final, we are not planning litigation at this time.”
Taylor said a Lambda Legal lawsuit against the new rule is “very likely,” but the timing isn’t yet clear as the comment period process unfolds.
“We are already asking people to call us if they’ve been denied health care, and the creation of this new HHS unit, I think, is an invitation to health care providers to start denying treatment to people now in anticipation that the administration is going to assist them,” Taylor said. “So there may be specific lawsuits that come up prior to the ruling going into effect that concern the administration’s efforts to provide exemptions to non-discrimination requirements.”