Has the Trump Administration Legalized Healthcare Discrimination?
Over the past few months, the Trump Administration has worked with peculiar purpose to restructure The U.S. Department of Health and Human Services (HHS) by implicating a new sector called Conscience and Religious Freedom Division with the Office of Civil Rights (OCR). This division was finalized on January 18, 2018, which aims to restore and enforce the federal enforcement of the laws that protect conscience and religious freedom through development of specific protections for health care providers.
To be clear — this division ‘protects’ health care providers (Doctors, Surgeons, RN’s, LPN’s, Nurses Aides, Technicians, etc.)
Breaking down the terms:
What exactly are conscience protections and religious protections?
The HHS describes conscience protections as rights that apply when health care providers refuse to perform, accommodate, or assist with certain health care services on religious or moral grounds. Simply, this means that a health care provider can exercise their personal integrity to refuse to perform certain procedures. Moreover, the health care provider can file a claim if they feel as though they have been discriminated against following the refusal to participate in specific medical procedures, such as sterilization, abortion, prescribing contraceptives, and gender-affirmation surgery.
Religious protections are not as well detailed, but along the same lines as conscience where a health care provider can exercise their right to use their religion as a reason for refusing to treat someone’s medical conditions or medical needs.
Legal Liberty or Discrimination?
This new division is creating several problems in regarding treatment for a lot of individuals, but this is particularly harmful to the LGBTQ community. A fear that health care providers will and have used religious freedom claims to discriminate against treating transgender individuals with hormone therapy, hormone treatment, reassignment surgeries, appropriate recommendations for aftercare and support groups, etc. Jionni Conforti, a transgender man, was denied a medically necessary total hysterectomy in 2015 from a Catholic Hospital. Conforti was able to file a lawsuit against the hospital as a result of their refusal in 2015.
Presently, the HHS Conscience and Religious Freedom division would protect that same hospital for continuing to refuse procedures that conflict with their religious values which puts thousands of men, women, gay, lesbian, transgender, non-binary individuals in jeopardy of being refused life-saving care or medically necessary treatment.
There have also been reports of health care professionals refusing to acknowledge individuals as their identified pronouns, and more recently even denying visitor’s rights to see their same-sex spouse. Director of Reproductive Health Service at the National Health Law Program, Susan Fogel, called this revision of rules “breathtakingly broad” and “[this] virtually allows anyone even remotely involved in health care to refuse to do anything to which they claim any kind of religious objection. The rules redefine basic words like ‘refer’ or ‘participate,’ and they really are a call-out to encourage discrimination instead of lifting up our civil rights laws.” She went on to state that, “The possibilities go even further. If you think about this, could an aide refuse to serve lunch to a patient having a service to which that aide has an objection? Could the person at the visitors’ desk refuse to give you a badge to go visit someone because they object to the service that person who’s in the hospital has received?”
This division creates several barriers that do not have a one-size fits all solution. LGBTQ advocates have analyzed insensitive responses such as “just find another health care provider” as not a reasonable solution. LGBTQ populations in rural areas, the conservation south, mid-west or any other conservative community may only have a few options for treatment. What happens if the three health care providers in rural Ohio deny treating you, then what? What happens if the only health providers your insurance approves deny your care, then what? What happens when the gender on your identification card does not match what your gender identity and the hospital or clinic does not deny your care, but instead calls you by improper pronouns throughout your entire visit, then what?
Another area that may be adversely impacted is individuals who wish to receive Truvada aka PrEP, a prescription drug that prevents infection of HIV if exposed to the virus. Doctors and nurse practitioners can deny prescription of his revolutionary drug because the person requesting it is in the LGBTQ community or their personal belief that this drug promotes promiscuity. Experts also suggest that this could extend to Ultrasound technicians refusing to do ultrasounds for lesbian couples, a gay couple who has a surrogate carrying their child, or a transgender man who is supporting his spouse during an ultrasound or any combination of these family dynamics.
According to thehill.com, The new HSS division already has received over 300 complaints in one month from health care professionals claiming that they were treated unfairly after denying services that conflict with their conscience or religious values. With this legal ordinance to discriminate, this can continue to deter women, people of color, and especially the LGBTQ community to delay or neglect seeking necessary treatment.
You can go to The Federal Register and submit comments objecting to or explaining your grievances against it. Each proposed rule has a time limit for suggested comments so act now!