How The Trump-Pence Health Care Refusals Proposal Fails to #PutPatientsFirst

by Harper Jean Tobin

The day before his scheduled hysterectomy, Evan Minton received terrible news. Hospital administrators at Dignity Health cancelled his surgery after finding out he was a transgender man.

Dignity Health had no problem allowing other hysterectomies — in fact, on the very same day that Evan’s surgery was supposed to take place, his doctor performed a hysterectomy on a non-transgender patient at that hospital. But they singled Evan out, dismissing his doctor’s objections that his surgery was just as medically necessary as the other patient’s. They made no effort to hide the fact that it was because he was transgender: they claimed that their religious directive didn’t allow for surgeries when they were used to treat gender dysphoria.

Evan sued the hospital for discrimination — but the Trump-Pence administration is trying to redefine discrimination. To them, Evan’s efforts to stand up for his right to care is “discrimination” against Dignity Health.

Evan Minton. Photo credit: Joanne Kim/The Nation

In a proposed regulation that represents one of the administration’s biggest attacks yet on civil rights and health care, the Department of Health and Human Services cited Evan’s lawsuit twice as an example of a religious hospital being “targeted for their religious beliefs.”

This dangerous proposal aims to make it easier for health care providers, hospital administrators, and others in the health care field to refuse to treat people based on their religious or moral disapproval of patients. If the Trump-Pence administration has its way, cases like Evan’s could become even more common than they already are.

This regulation isn’t final yet, but if it does get adopted, it could be disastrous for patients, especially transgender people and others who already struggle to get the health care they need. The Department of Health and Human Services is accepting public comments on this proposed regulation until March 27. Click here to comment now.

1. This health care proposal doesn’t consider patients.

What makes this proposed regulation particularly appalling is that it doesn’t even consider the impact that expanding religious refusals could have on patients. Despite spanning over 200 pages, the proposed regulation doesn’t spare a single word to discuss the potential burden on patients — the very people the Department of Health and Human Services was created to serve.

For many patients, making it easier for doctors and health care entities to turn them away means that their access to care will be dangerously delayed or even outright denied. That’s especially true for people who need specialized care (like reproductive care or transition-related care), people who live outside of large cities, or people who live in the growing number of areas where religiously affiliated institutions have a near-monopoly on hospitals and clinics.

Evan Minton was eventually able to reschedule his surgery at another hospital — though not before undergoing a great deal of stress — but for many others, finding another provider is simply not an option. Even for those who can find an alternative, the delay in treatment can be dangerous or even life-threatening.

2. The proposal reinterprets existing laws to extend discrimination.

The Trump-Pence administration claims it’s doing nothing more than enforcing existing laws, but in reality, its proposed regulation goes far beyond what those laws allow. Its broad and unprecedented reinterpretation of religious refusal laws seeks to extend them more broadly than ever before.

Freedom of religion is a fundamental value — there’s no doubt about that. That’s why it’s already protected by the Constitution and federal laws, as well as by numerous regulations and state laws. But denying people access to medical care in the name of religious freedom makes a mockery of this principle. Encouraging health care providers to refuse medical care to patients because they disapprove of who they are or how they live their lives runs contrary to our values and our Constitution.

The regulation tries to extend religious refusals to circumstances well beyond what those laws intended, ignores key patient protections, and creates confusion and ambiguities that will embolden those who want to engage in harmful discrimination.

Providers could deny transition-related care…

A set of laws commonly referred to as the Church Amendments say that certain federal funds can’t used to penalize health care providers based on their religious beliefs about abortions or sterilization.

Typically, this statute has not been applied to treatments that have reducing fertility as a side effect — like many transition-related treatments. But the proposal would expand these exemptions so that institutions could refuse to treat gender dysphoria, even against the medical judgment of individual health care providers.

…deny any care to trans people…

While unsupported by law, the regulation could even be interpreted to allow providers to refuse to treat transgender people for other conditions — from the flu to cancer — if they believe the treatment is somehow related to being transgender, or to refuse to treat transgender patients at all simply because they might need to ask about transition-related treatments the patient may have undergone.

To be clear, that’s not a hypothetical possibility — we already hear too often of doctors refusing patients for primary care because they might have to discuss their ongoing hormone therapy.

The regulation’s sweeping language could also extend some parts of the Church Amendments even more broadly to any treatment a provider personally disapproves of, regardless of whether they have any connection to sterilization or abortions — opening the door to a breathtaking range of discrimination based on moral or religious disapproval of LGBTQ people, women, people of color, people with disabilities, and others.

…refuse to provide even non-medical services to trans patients…

The regulation could radically expand the scope of the Church Amendments in another way. Until now, health care providers could refuse to perform certain duties because of a religious objection to a treatment — but only if those duties have some reasonable connection to the treatment they object to.

But HHS is proposing to get rid of the basic requirement that the connection be reasonable. That means that staff whose duties have a very thin connection to a procedure they object to — like bringing food to a patient, scheduling a follow-up, or just transporting them from one room to another — would be able to refuse to do their jobs for that patient.

That means that even when a patient is able to find a doctor or a hospital that will treat them, other staff’s refusal to do their jobs can delay, interfere with, or even entirely prevent their treatment.

…and beyond.

The scary thing is that HHS’ reinterpretation of the Church Amendments is just one small part of the regulation, which tries to blow open exemptions for hospitals, health care staff, insurance companies, and more under many other laws.

In doing so, the regulation ignores key patient protections that currently exist in laws, like requirements that patients be informed of alternative treatment options or a health care entity’s policy to refuse a treatment based on religious beliefs.

HHS falsely suggests that these sweeping exemptions override numerous state and local laws that protect people from discrimination — as well as eroding basic protections under federal law. It fails to even acknowledge a federal law called EMTALA, which requires hospitals to provide emergency treatment no matter what. And it tries to pressure hospitals and other health care employers who want to treat their patients fairly into creating new, expansive exemptions for employees at the cost of patients’ health.

3. Many parts of the regulation are flat-out wrong on the law.

The regulation’s misinterpretations can’t change the meaning of the underlying law or the nondiscrimination protections transgender people have. But the Trump-Pence administration’s attempt to muddy the waters could embolden people to break the law. It sends the message that if health care entities violate patients’ civil rights, the federal government doesn’t have their back.

4. You can help fight back.

Right now, HHS is collecting public comments on its proposed rule — and there’s a week left to get them in.

A flood of public comments will put pressure on HHS not to move forward with this dangerous rule — and will help set the stage for patient advocates challenging it in court if they do. We all need to speak up and let them know that our government should not be in the business of promoting discrimination — and that this proposed rule should be scrapped entirely.

Click here to comment and share your story with HHS now. You have until March 27!

Harper Jean Tobin is the Director of Policy at NCTE.

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National Center for Transgender Equality

National Center for Transgender Equality

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We’re the nation’s leading social justice advocacy organization winning life-saving change for transgender people. Also at https://transequality.org.