Trump administration strengthens ‘conscience rule’ allowing health care workers to refuse abortion services

Medical providers risk losing federal funds if they fail to respect workers denying services on religious or moral grounds 

Margot Sanger-Katz
Friday 03 May 2019 13:17
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Georgia members of the Handmaid Coalition protest the passage of the 'fetal heartbeat bill' banning abortions after six weeks on International Women’s Day, 2019
Georgia members of the Handmaid Coalition protest the passage of the 'fetal heartbeat bill' banning abortions after six weeks on International Women’s Day, 2019

Donald Trump has announced an expanded “conscience rule” to protect health care workers who oppose abortion, sterilisation, assisted suicide and other medical procedures on religious or moral grounds.

The rule introduced on Thursday establishes guidelines for punishing health care institutions with the loss of federal funds if they fail to respect the rights of such workers.

“Just today, we finalised new protections of conscience rights for physicians, pharmacists, nurses, teachers, students and faith-based charities,” Mr Trump said in a Rose Garden event for the National Day of Prayer. “They’ve been wanting to do that for a long time.”

After the 440-page rule was released, some groups said they feared the provisions were too broad and could imperil care for patients seeking reproductive health care.

They also said it could lead to discrimination against gay or transgender patients and their children, and weaken public health efforts to expand childhood vaccinations.

“The rule allows a very wide range of people – from the receptionist to the boards of hospitals and everyone in between – to deny a patient’s medical care if their personal beliefs get in the way,” said Fatima Goss Graves, the president of the National Women’s Law Centre.

Ms Goss Graves described the rule as not only tightening enforcement of civil rights laws, but also changing the balance of rights between patients and their clinicians.

The rule was issued by the Department of Health and Human Services’ Office for Civil Rights, which has been substantially expanded under Mr Trump.

The administration has created a conscience and religious freedom division within the office, and the president’s budget sought to expand its funding.

It is part of a portfolio of policy changes meant to broaden religious exemptions for certain types of medical practice. The administration has already created new exemptions from the Affordable Care Act’s requirement that employer health plans cover contraceptive care, though that change has been delayed in court.

Another rule, still in its proposed stage, would modify civil rights requirements that bar discrimination by hospitals and insurance companies against transgender patients and women with a history of abortion.

The president foreshadowed the new rule early in his term by signing a “free speech and religious liberty” executive order.

“People and organisations do not have to shed their religious beliefs simply to help others in health care,” said Roger Severino, the director at the HHS office for civil rights.

In a conference call with reporters, he noted a series of existing laws to provide protections to those who have religious objections to delivering certain types of care. “We are giving those laws life with this regulation.”

Several conservative and religious groups applauded the new standards, which they said would protect health providers from being compelled to provide services that conflicted with their beliefs.

“Quite frankly, it’s a horrible, awful thing, regardless of what your personal beliefs are about abortions, that a nurse like Cathy DeCarlo was forced to participate in one, despite the fact that she is pro-life,” said Melanie Israel, a research associate at the Heritage Foundation.

She was referring to a complaint that a nurse successfully lodged against a New York hospital in 2013. Mr Severino mentioned the same case in his remarks on Thursday.

Ms Israel said the Trump administration’s actions on religious and conscience exemptions had been important not just because of strengthened enforcement, but also because they had brought attention to the issue.

Mr Severino said complaints made to his office had increased sharply. The Obama administration averaged just over one per year. By contrast, the office has received 343 complaints in the last fiscal year alone, Mr Severino said.

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.

“The goal of the proposed rule was to expand the universe of individuals and conduct that would be protected under the provider conscience laws, and to institute a broader range of enforcement tools and formal requirements,” said Jocelyn Samuels, who was the director of the office for civil rights for part of the Obama administration, and is now the executive director of the Williams Institute at the University of California, Los Angeles.

She expressed concern that the rule could affect women’s access to reproductive health care, and care for LGBT patients more generally.

Laws written in the 1970s to provide protections to workers who objected to sterilisation procedures, for example, are cited in the rule. The old laws were brought up in connection with recent cases about health care workers with religious objections to treating transgender patients.

“It’s completely a misapplication of the statues, and a very large leap from anything that it was intended,” said Jamie Gliksberg, a senior attorney at Lambda Legal, which supports LGBT people. “They’re taking this out of context and leveraging it against the transgender community.”

The rule may be challenged in court. Xavier Becerra, the California attorney general, who has already taken on a number of Trump administration policies, suggested he may fight it.

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Once the rule goes into effect, in around two months, the administration could begin to flex new muscles. California, for example, has a law requiring all health insurers to cover abortions, and Mr Severino is on record as criticising the Obama administration’s treatment of the law.

“They are giving themselves authority to enforce all this stuff,” said Katie Keith, a research professor at Georgetown University. “What they do next will really test things.”

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