This article was written by Shira Stein and originally published by Bloomberg Law on June 12, 2020
The Trump administration has finalized a policy that would remove women seeking abortions and LGBT people from the Affordable Care Act’s non-discrimination protections, the HHS announced Friday.
The regulation would let health-care workers, hospitals, and insurance companies that receive federal funding refuse to provide or cover services such as abortions or transition-related care.
This continues the Trump administration’s efforts to roll back protections in health care for LGBT people. The Department of Health and Human Services Office for Civil Rights sees preserving “religious freedom” as essential to making sure health-care professionals don’t get penalized for the actions they do or don’t do in their jobs because of their moral beliefs.
“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress. We are unwavering in our commitment to enforcing civil rights in healthcare,” OCR Director Roger Severino said in a statement.
The rule will also keep protections for individuals with disabilities to physically access health-care facilities, technology to assist the visual or hearing-impaired, and protections for non-English speakers.
Legal Challenges Planned
Lambda Legal, an LGBT legal and advocacy organization, plans to challenge the rule, attorney Omar Gonzalez-Pagan said in a statement.
“At a time when the entire world is battling a dangerous pandemic, which in the United States has infected more than 2,000,000 people and killed more than 116,000, it is critical for everyone to have ready access to the potentially life-saving health care they need,” Gonzalez-Pagan said.
“The Trump administration has enshrined its discriminatory interpretation into the HHS rule book but that does not—and cannot—actually change the law. However, this is enough to cause confusion and hurt our communities,” Sasha Buchert, senior attorney and co-director of Lambda Legal’s Transgender Rights Project, said in a statement.
The Human Rights Campaign, an LGBT advocacy organization, also plans to sue, President Alphonso David said in a statement.
The Human Rights Campaign said it will argue that removal of these protections “exceeds the administration’s authority to define sex discrimination under the ACA and grossly undermines the law’s primary goal of eliminating barriers and broadly expanding access to healthcare and health education programs.”
The Transgender Law Center, Harvard Center for Health Law and Policy Innovation, Transgender Legal Defense and Education Fund, and the National Women’s Law Center also plan to sue, National Women’s Law Center CEO and President Fatima Goss Graves said in a statement.
“No one should fear being turned away by a medical provider because of who they are or the personal health decisions they have made. This is beyond unacceptable, and we are prepared to take whatever action is necessary to ensure patients come first,” Goss Graves said.
Another OCR rule that allows health-care workers to deny care based on their religious and moral beliefs was tossed out by three courts and has been appealed to the U.S. Court of Appeals for the Second Circuit.
The initial regulation creating these protections, written during the Obama administration, barred health providers and insurers from discriminating against people based on their gender identity or the termination of a pregnancy.
That rule was struck down by the U.S. District Court for the Northern District of Texas in October 2019 and was appealed to the U.S. Court of Appeals for the Fifth Circuit in January.
Lawmakers from the Congressional Pro-Choice Caucus, Congressional LGBTQ+ Equality Caucus, Congressional Asian Pacific American Caucus, Congressional Hispanic Caucus and Congressional Black Caucus said the latest rule would “embolden discrimination” and is “cruel and unconscionable.”
“The Administration’s efforts to unlawfully roll back Section 1557’s protections is shameful. It not only denies people their lived experiences but undermines their ability to seek health care with dignity,” the lawmakers said.
HIV advocates, including members of the Presidential Advisory Council on HIV/AIDS, say the regulation would hinder the administration’s initiative to lower the spread of HIV.
However, conservatives are celebrating the decision and its protections for health-care workers and insurers.
“The Trump administration is right to formally rescind Obamacare regulations that radically altered the meaning of ‘sex’ to mean things it doesn’t,” Ryan Anderson, senior research fellow at the Heritage Foundation, said in a statement.
The Obamacare rule “would have required doctors, hospitals, and health care organizations to act in ways contrary to their best medical judgments, their consciences, and the physical realities of their patients, or face steep fines and become easy targets for unreasonable and costly lawsuits,” Anderson said.
The rule is estimated to save $2.9 billion over five years in regulatory burden due to eliminating the requirement that health-care providers send patients information in 15 or more languages in mailings.
“Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their healthcare,” Severino said.
—With assistance from Lydia Wheeler, Ayanna Alexander