The U.S. Department of Health and Human Services (HHS) has finalized a new rule that will allow health care workers to refuse to provide or assist in providing medical services if doing so violates their religious or moral beliefs. In other words, it will allow them to discriminate widely—putting LGBTQ people and our families, among others, at risk.
The rule is designed to “protect the rights of individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons.” It focuses mainly on abortion, sterilization, and assisted suicide. That’s bad enough, as it violates the rights of women and transgender people, among others, to have control over their bodies.
As Fenway Health explained, however, the impact could be broader: “Potential religious or conscience-related conduct protected by the final rule could include a refusal to serve LGBT people or their children based on the belief that same-sex couples should not be allowed to marry or raise children, that people should not have sex outside of heterosexual marriage, and that gender identity should not differ from sex at birth.” HRC notes, “In practice, the broad reach of the rule could allow health care providers to refuse to provide not only abortion and sterilization procedures, but also to deny treatment or preventative care for AIDS or HIV, hormone therapy treatment and transition related care and in-vitro fertilization for lesbians, single women or interfaith couples.”
All health care entities that receive any federal funds, including Medicare and Medicaid, must abide by the new ruling. Lambda Legal adds, too, that, “The proposed rule also shields health care providers even if they refuse to give a referral after denying care, regardless of the consequences to the patient, and in violation of medical and ethical requirements and standards of care.” The discrimination is allowed not only in patient health care, but also health research and health insurance coverage.
Health care facilities will be required to post notices to their employees that the facility “complies with applicable Federal conscience and anti-discrimination laws prohibiting exclusion, adverse treatment, coercion, or other discrimination against individuals or entities on the basis of their religious beliefs or moral convictions” and informs them, “You may have the right under Federal law to decline to perform, assist in the performance of, refer for, undergo, or pay for certain health care-related treatments, research, or services (such as abortion or assisted suicide, among others) that violate your conscience, religious beliefs, or moral convictions.”
The Law, Rights, and Religion Project at Columbia Law School has a different take, however. They remind us that, “Communities and people of faith hold a wide spectrum of views regarding abortion, sterilization, and other health services implicated by the rule. In fact, several religious denominations hold that the right to reproductive healthcare is an essential aspect of religious freedom.” Furthermore, “The rule violates the religious liberty of all Americans by establishing a formal legal preference for particular religious beliefs, including opposition to abortion and sterilization.”
The rule also comes during the continued advance of so-called “religious freedom” laws that allow child-placement agencies to discriminate against LGBTQ prospective parents and others if serving them conflicts with the agencies’ religious beliefs or moral convictions. Some of these laws also allow agencies to refuse to serve certain children, to deny children services to which the agency objects (like hormone therapy, contraceptives, or affirming mental health care) or force them to undergo discredited “conversion therapy,” as HRC detailed in a recent report. And President’s Trump’s latest budget includes the line item: “Protect the religious liberty of child welfare providers.” It has no funding amount attached to it, but clearly indicates that abortion, sterilization, and assisted suicide are only the tip of the religiously protected iceberg.
The rule will go into effect 60 days after its publication in the Federal Register, which will likely happen very soon. It is awful and likely to provoke lawsuits. The New York Times reports that “Xavier Becerra, the California attorney general, who has already taken on a number of Trump administration policies, suggested he may fight it.” Still, it may make life difficult for those unable to access equity-minded health care facilities. Those of us who do have some flexibility in that regard may wish to peruse HRC’s Healthcare Equality Index, which evaluates healthcare facilities’ policies and practices related to the equity and inclusion of their LGBTQ patients, visitors, and employees.
Another powerful tool, too, is word of mouth among the LGBTQ community and our allies about which healthcare providers are and are not welcoming to and inclusive of all patients. Please share information if you have it—online, with your friends and family, or wherever it may be needed. The rule may be awful, but our community has dealt with awful before. We can help each other be strong.
