The Trump administration released a final rule Thursday that will allow health workers to refuse to perform or assist medical procedures — like abortion, assisted suicide, or sex reassignment surgery — if it violates their “conscience” or religion.
The rule, which will take effect in 60 days, applies to health care institutions receiving federal funding. It repeals an Obama-era discrimination protection rule that President Donald Trump’s Department of Health and Human Services said “proved inadequate.” The new rule specifically protects “providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide.”
The rule was first proposed in January 2018, along with the launch of HHS’s new Conscience and Religious Freedom Division, which was created by the Trump administration. The division was specifically created to monitor and respond to complaints related to the proposed rule, using those complaints and comments to help form the final version released Thursday. More than a year after its proposal, HHS issued the final 440-page rule Thursday: “Protecting Statutory Conscience Rights in Health Care.”
The rule is primarily concerned with enforcing existing civil rights protections to apply specifically to discrimination based on religious beliefs, Roger Severino, head of HHS’s Office for Civil Rights (OCR), said during a call with the media on Thursday.
“Currently, as with every other civil rights statute, we require that entities that receive grants from HHS will not discriminate on the basis [of race or gender],” Severino said. “To that we are adding religious belief and conscience … Saying you are going to comply is a contract with the government.”
If workers complain to the OCR about discrimination from their employer and that employer is found to have violated the rule, they could potentially lose their government funding, Severino said.
Severino said that under the Obama administration, HHS received only about one or two complaints from health professionals saying they were discriminated against for not performing or assisting with procedures that violated their moral or religious beliefs, but that in the past fiscal year, since the introduction of the OCR’s Conscience and Religious Freedom Division, HHS had received over 300 of these complaints.
“It shows it’s a real problem out there,” Severino said, adding that one of the top concerns expressed to the office from workers had to do with not wanting to refer for, assist with, or provide abortions. “Some doctors said they felt threatened from becoming an OBGYN, felt they would be forced to perform abortions.”
Abortion rights and LGBT rights activists argue that the new rule will only make it harder for people seeking abortions and sex reassignment procedures to obtain that care, particularly in underserved, rural areas, where anti-abortion state laws already make accessing abortion services difficult.
When asked what patients without many health care options were supposed to do if their hospital or health care provider refused to perform the procedures they were seeking, Severino repeatedly avoided the question, instead saying that the US had many health care options, and that “patients want doctors who match their values.”
Transgender patients could also be denied certain treatments on moral grounds — though the new rule does not refer to transgender people explicitly. Rather, the rule cites the 1973 Church Amendment, which, in addition to addressing abortions, also protects federal funding for recipients who object to sterilizations. HHS’s new rule argues the law allows a provider to deny any service that results in sterilization.
This allows providers to deny hormone therapy, hysterectomies, orchiectomies, and other transition-related services for transgender people, said Gillian Branstetter, a spokesperson for the National Center for Transgender Equality.
In the final rule, HHS responded to comments raising those concerns, saying, “In the event the Department receives any such complaints, the Department will consider them on a case‐by‐case basis.”
“We’re confident this rule will make the lives of transgender people across this country harder,” Branstetter told BuzzFeed News, who cited the case of a transgender man in California who sued after he was denied a hysterectomy shortly before his surgery because a religiously affiliated hospital canceled the treatment. “Religious liberty is a bedrock principle for all Americans — including transgender people — but this regulation is a perversion of that principle.”
Socially conservative and anti-abortion organizations were quick to praise the administration for the release of the final rule. Major anti-abortion group Susan B. Anthony List said in a statement that the rule fulfilled “a key promise to pro-life voters,” and the conservative law firm Alliance Defending Freedom said that their clients have faced the very “discrimination” the rule seeks to do away with.
Meanwhile, HHS is expected to issue another, separate draft rule any day that also concerns abortion and transgender patients. According to statements HHS has made in court, the rule would seek to reverse part of a 2016 policy, also created under the Affordable Care Act, that says discrimination in medical care or insurance coverage due to gender identity or “termination of pregnancy” is illegal. That rule concerns how the government defines the term “sex,” rather than religious exemptions.
The announcement of the rule also comes a week after the Supreme Court announced they would examine whether it is illegal under federal law for employers to discriminate against employees on the basis of sexual orientation and gender identity.