A new Trump administration rule could make it harder for women and transgender people to receive some forms of health care.
The rule, which was proposed in January and finalized this week by the Department of Health and Human Services Office for Civil Rights after a period of public comment, is 440 pages long, so, I have to admit that I haven’t read it. I did, however, read The New York Times article about the rule change, and reporter Margot Sanger-Katz explains it thus:
A series of civil rights laws has long protected health care workers from offering certain types of care that conflict with their religious beliefs. But the new regulation pulls together 25 separate laws—some dealing only with abortion services, some with advance directives, and many that had typically not been overseen by the department’s Office for Civil Rights—into one broad framework. It also protects workers who not only decline to provide care but also refuse to refer patients to someone who will provide it.
Basically, this new rule will require institutions that receive federal money to protect workers who refuse to participate in some medical procedures on ethical or religious grounds.
In the media, the response to this rule has largely fallen along ideological lines: The headline in a Queerty article by Daniel Villarreal (who wrote a fascinating Stranger cover story on a sort of gay cult last year) is, “Trump’s Latest Proposed Rule Change Will Literally Kill Lots of Trans People.” (He is, for the record, against this.) On the other side of the spectrum, the conservative Daily Caller went with the much dryer headline, “Trump Administration Issues Rule Allowing Health Care Providers to Refuse Services That Violate ‘Conscience.’” That piece, by Grace Carr, quotes the Family Research Council and the president of March For Life, and is, as you might expect, wholly supportive of the new policy.
It’s easy to see why many conservatives are in favor of this rule and why advocates for health care are against it, and there are endless scenarios in which a patient could be refused medical service. This will, for instance, protect doctors who refuse to give chemotherapy to pregnant women because it might harm their fetuses, or pharmacists who refuse to provide Plan B because they object to abortion (this is already legal in states with so-called “refusal laws”). And this is not hypothetical: Several years ago, doctors at a Catholic hospital refused to perform an emergency abortion on a women named Tamesha Means, who went into labor at 18 weeks. Means was sent home, where she miscarried and contracted an acute bacterial infection.
In addition to protecting hospitals like the one that denied Means, the new rule would allow for discrimination against LGBTQ people. In a statement, the Human Rights Campaign said, “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.”
The ACLU, a group that often has to weigh the rights of religious freedom against other civil liberties, is siding with patients in this case. In a statement, Deputy Legal Director Louise Melling said, “Religious liberty is a fundamental right, but it doesn’t include the right to discriminate or harm others. Denying patients health care is not religious liberty. Discriminating against patients based on their gender or gender expression is not religious liberty. Medical standards, not religious belief, should guide medical care.”
I agree with Melling. The right to practice your religion should not impinge on the rights of other people. Besides, the Hippocratic Oath mandates that providers “do no harm,” and denying people health care because you think God causes AIDs or whatever would certainly do harm. But when I reached out to the American Medical Association, their perspective was a little more nuanced than I expected. While a spokesperson said the AMA is still evaluating the new rule and has yet to take an official position, a statement by AMA President Barbara L. McAneny makes clear that moral objections to non-emergent medical procedures, which this rule protects, can be legitimate.
“The American Medical Association believes that no physician should be required to perform an act that violates good medical judgment, and no physician should be required to perform any act that violates personally held moral principles,” the statement reads.
At the same time, McAneny adds, “According to ethical guidance from the Code of Medical Ethics, physicians’ freedom to act according to conscience is not unlimited. Physicians are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and not discriminate against individuals based on race, gender, sexual orientation, gender identity, or other personal or social characteristics. In certain circumstances involving foreseeable harm or adverse consequences from delayed access to care, physicians have a strong obligation to serve the patient.”
This makes sense to me. In the case of an emergency, the provider’s obligation is to serve the patient, and the rule makes no exemptions for emergencies. But I also think health care providers should be able to refuse to participate in some procedures on ethical grounds, at least in non-emergent situations.
Take, for instance, the case of Jahi McMath, an Oakland teenager who suffered severe complications after a routine tonsillectomy. McMath, who was just 13 at the time, had a heart attack shortly after surgery and was declared brain dead soon after. The hospital, including the hospital’s ethics board, wanted to take her off life support, but her parents refused. This resulted in a protracted legal battle, and the family eventually moved her to another facility for treatment, where she died five years later, never regaining consciousness. The Trump administration rule specifically mentions abortion, sterilization, and end-of-life directives, so should a hospital be compelled to keep a brain dead patient alive? There are obvious financial reasons for a hospital to fight against this sort of compulsory care, but there’s also an ethical argument to made against extending life under any and all circumstances.
Still, I understand why advocacy groups are disturbed by this rule. It’s another one in a long line of Republican policies that use religion as a cudgel to limit access to abortion and deny rights to LGBTQ people. Roger Severino, the Trump-appointed head of the HSS Office for Civil Rights, has a record of animosity towards abortion and LGBTQ populations. It’s deeply troubling that this man is in charge. But I’m still torn on whether or not anyone should be compelled to act against their conscience in a non-emergent situation, whether they are religious or not. I don’t think a doctor should be able to refuse to perform an abortion if it’s necessary to save the life of the mother, of course, but I do think doctors should be able to refuse other forms of health care if they morally object. Should, for instance, a prison doctor be compelled to perform lethal injection? I think, unequivocally, no, and yet some providers have just as much moral objection to performing abortions as others do to lethal injection. Should only one of these groups be able to opt-out of the performing the procedure they don’t like? Like everything in life, it’s complex.
Regardless, the rule will not be implemented without a fight. A day after it was announced, the City of San Francisco filed a lawsuit arguing that it will restrict patient access to contraception and abortion, as well as HIV treatment and other services. It could also cost the city up to $1 billion in federal funding if they refuse to comply—which they might. “At its core, this rule is about denying people medical care,” City Attorney Dennis Herrera said in a statement. “This administration is willing to sacrifice patients’ health and lives—particularly those of women, members of the LGBTQ community, and low-income families—to score right-wing political points.” And that, I don’t think anyone could argue against.
