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HHS’s New Rule Allows Health Care Workers to Discriminate Against LGBTQ People and Abortion Seekers

This isn’t just another form of Trumpian bigotry, which is why we should be even more nervous.

The Department of Health and Human Services has announced a new rule intended to expand “conscience protections” for health workers who don’t want to treat transgender patients or perform abortions under the auspices of religious liberty. The proposed changes are the latest in a long line of attacks on transgender rights and reproductive freedom by the Trump administration. But don’t mistake this for a uniquely Trumpian act of aggression: This kind of action is not without precedent in recent American history—and that makes it all the more plausible and all the more frightening.

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Under the Obama administration, the HHS took sex discrimination—barred by Section 1557 of the Affordable Care Act—to include discrimination on the basis of both “gender identity” and “termination of pregnancy.” This new provision, first introduced in May 2016, was described by National Center for Transgender Equality Executive Director Mara Keisling as “literally life-saving.” Yet the current administration is poised to roll back those protections. And while past efforts by the administration to flex its authority to discriminatory ends have been impaired by inexperience—in the words of Benjamin Wittes, the Muslim ban’s efficacy was “mitigated chiefly (and perhaps only) by the astonishing incompetence of its drafting and construction”— this time, Trump has other papers he can cheat off of, namely, past Republican presidents’ initiatives and extensive legal precedent.

Almost immediately after Roe v. Wade, laws were passed to ensure that hospitals or clinics that received federal funds would be unable to force medical personnel who objected to abortion or sterilization on the grounds of their “religious beliefs or moral convictions” to perform those procedures. For decades, though, there were no regulations in place to enforce that legislation—until the Bush administration. On George W. Bush’s final day in office, a new “conscience clause” took effect, cutting off federal funding for institutions that failed to accommodate employees’ religious or moral objections. The biggest problem with the rule was that it was so broadly sketched it could conceivably be applied to almost anything: access to birth control, in vitro fertilization for lesbian couples, treatment of gay men with HIV/AIDS, or respecting the end-of-life wishes of the terminally ill, to list a few. It would also require institutions to detail their compliance—just as Trump’s new “division” of the Office for Civil Rights, if instituted, will exist primarily to conduct compliance reviews ensuring that medical workers are allowed to “conscientiously object” to certain forms of health care.

The Obama administration’s 2009 proposal to roll back the conscience clause was similarly controversial, receiving 300,000 public comments. It wasn’t until 2011 that the clause was officially modified. And while the change reduced the scope of the Bush administration’s regulation, conscience protections have since been rebroadened by numerous court rulings, most famously in Burwell v. Hobby Lobby in 2014. The 5–4 decision, in which the Supreme Court ruled that closely held corporations may deny their employees access to contraception through their health insurance if birth control violates the company’s religious beliefs, set what Justice Ruth Bader Ginsburg recognized as an alarming precedent. In her 35-page dissent, she noted the dangers of “invit[ing] for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith,” concluding: “The court, I fear, has ventured into a minefield.”

Most recently, there’s also a 2016 case in which five states sued the federal government on behalf of three medical organizations (two of the three affiliated with Christian groups) over Section 1557 of the ACA. That ruling, from U.S. District Judge Reed O’Connor, was a huge blow to LGBTQ rights, allowing individuals and institutions to sidestep vital and hard-won nondiscrimination protections. Like Hobby Lobby, it invoked the Religious Freedom Restoration Act, which has been on the books since 1993. The statute, originally intended to protect religious minorities’ free exercise rights, was expanded by the Hobby Lobby ruling to protect businesses against nondiscrimination laws. The precedent allowed O’Connor to take this already shaky reasoning even further: He wrote that insurance companies and hospitals should be allowed to refuse transgender individuals, as an obligation to treat or insure them would “substantially burden their exercise of religion.”

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The medical stakes are high. The most recent U.S. Transgender Survey, conducted by the National Center for Transgender Equality in 2015, found that “In the year prior to completing the survey, one-third (33%) of those who saw a health care provider had at least one negative experience related to being transgender, such as being verbally harassed or refused treatment because of their gender identity.” More than 800 people reported that they had been refused care totally unrelated to transitioning—say, a physical, or treatment for the flu.
Perhaps equally worrying is the chilling effect this kind of treatment can produce the next time a visit to the doctor’s office is in order: Of the 28,000 respondents, nearly a quarter “did not seek the health care they needed in the year prior to completing the survey due to fear of being mistreated as a transgender person.” And for those seeking an abortion, the time it takes to find a willing doctor can have serious ramifications for the woman’s health and safety.

It’s tempting to dismiss the current head of HHS’s Office for Civil Rights, Roger Severino, as a Trump crony in the same vein as, say, Scott Pruitt at the EPA: a comically unqualified figure whose beliefs are antithetical to the position he holds. But unlike many of the current administration’s appointees, Severino does have experience—as a DOJ trial attorney under Bush and Obama, as COO and legal counsel for a religious-liberty law firm, and most recently as a prominent figure in the Heritage Foundation, a conservative D.C. think tank. (His title there was director of the DeVos Center for Religion and Civil Society in the Institute for Family, Community, and Opportunity, named for the family of a certain education secretary.) In these various capacities, he has made his opposition to same-sex marriage, protections for trans people, and the pro-choice movement abundantly clear, even considering LGBTQ identities to be “against your biology.”

In an interview with the Atlantic last June, Severino described “conscience protection” as a priority for his office. In that same piece, a self-described progressive who had worked with Severino in the past said that compared to others in the Trump administration, “Severino doesn’t seem too extreme … I think he’s a traditional conservative Republican that George W. Bush would recognize.”

This is perhaps the most alarming thing about the new HHS rule. It’s not inherently clumsy and inept, nor is it uniquely blunt or extreme in the way we’ve come to expect from Trump; it’s drawing on an organized, insidious form of bigotry with a long and dangerous history. To oppose it, as the ACLU, Lambda Legal, and others have already promised to do, we need to be able to trace that arc and acknowledge that many on the right have advocated for such steps before.