July/August 2019 Church & State Magazine | Cover Story

A pediatrician could deny treatment to a sick child because his parents are lesbians.

A receptionist could turn away an interfaith couple seeking fertility treatment.

An ambulance driver could refuse to transport a woman with an ectopic pregnancy.

A nurse could withhold information about HIV treatment.

All of these scenarios and many more are possible under the Trump administration’s new Denial of Care Rule, religious freedom and public health advocates warn.

“This is the Trump administration’s most dangerous attempt yet to weaponize religious freedom, and we won’t stand for it,” Americans United President and CEO Rachel Laser said on May 2, the day President Donald Trump announced the new rule during a National Day of Prayer ceremony at the White House.

This is the Trump administration’s most dangerous attempt yet to weaponize religious freedom, and we won’t stand for it.

~ Rachel Laser, AU President and CEO

The rule invites any health care worker – including doctors, nurses, paramedics, administrators and even clerical staff – to deny medical treatment and services to patients because of personal religious or moral beliefs, even in life-or-death situations. The vaguely worded rule sets no limits on what constitutes a religious or moral refusal, nor does it establish appropriate safeguards to ensure that patients who are denied care get the treatment they need. Medical facilities that enforce their own nondiscrimination and emergency polices rather than let employees arbitrarily deny care to patients risk losing federal funding.

Denial of Care Rule targets LGBTQ people, women and religious minorities

“It is clear that women, LGBTQ people and religious minorities are the intended targets, but it doesn’t stop there,” Laser said. “The rule is so broad that everyone – including sick children, pregnant women and senior citizens – is at risk.”

The U.S. Department of Health and Human Services formally issued the final rule, deceptively named “Protecting Statutory Conscience Rights in Health Care,” on May 21. The rule is scheduled to go into effect on July 22 – unless courts block it first.

If Americans United has its way, that’s exactly what will happen. After the rule was officially announced, AU and its allies swung into action and promptly challenged it in two federal courts in California and Maryland.

The first case was filed on May 28 by AU, the Center for Reproductive Rights and the National Women’s Law Center in coordination with Santa Clara County, Calif., and the law firm Mayer Brown. The second case was filed June 6 by AU, the city of Baltimore and the law firm Susman Godfrey. (Other government and health care entities also have filed related lawsuits.)

Santa Clara, a county on the outskirts of San Francisco that is home to almost two million people, operates a network of public hospitals, pharmacies, emergency services and behavioral health services, a public health department and a publicly run health insurance plan. It is the only public safety-net health care provider in the county and the second-largest such provider in California.

The County of Santa Clara vs. HHS lawsuit explains that the Denial of Care Rule places tremendous burdens on Santa Clara’s health care facilities, which are often the only treatment option for vulnerable populations. AU’s lawsuit asserts that the rule is completely unworkable for providers like Santa Clara, could result in the loss of hundreds of millions of dollars in federal funding for the county’s critical health services and will undermine the county’s ability to carry out its mission and provide necessary patient care.

“This rule encourages discrimination against vulnerable patients already facing barriers to care,” said Santa Clara County Counsel James R. Williams. “It places an enormous burden on public health care networks like the county’s, which already have robust protections in place to accommodate employees’ religious objections without compromising care to the communities we serve.”

The rule would similarly have grave consequences on the public health of Baltimore, according to the lawsuit Mayor and City Council of Baltimore v. Azar. The city of 600,000 people includes historically marginalized groups, and many members of its population have elevated health risks, including a higher than average mortality rate, drug overdose mortality rate and HIV diagnosis rate.

The Baltimore City Health Department – the oldest continuously operating public health department in the U.S. – has strived to eradicate discrimination in health care to ensure that vulnerable populations will seek medical care without fear of stigmatization. The new HHS rule would require Baltimore to endorse the very discrimination it has been combatting – risking not only the health of vulnerable groups, but also the public health city-wide.

“The rule is simply dangerous for the residents of Baltimore city,” City Health Commissioner Dr. Letitia Dzirasa said. “If enacted, the rule will allow providers to deny lifesaving services based on personal beliefs, and it can only serve to further marginalize at-risk populations.”

Under Trump's Denial of Care Rule, everyone is at risk

Several other health care organizations that primarily provide reproductive care or medical services for the LGBTQ community also are represented in the Santa Clara lawsuit. They include Trust Women Seattle; Hartford GYN in Connecticut; Whitman-Walker Health in Washington, D.C.; Bradbury-Sullivan LGBT Community Center in Allentown, Pa.; the Los Angeles LGBT Center; Center on Halsted in Chicago; and Mazzoni Center in Philadelphia. Also named as plaintiffs in the suit are several physicians and the associations GLMA: Health Professionals Advancing LGBT Equality; the Association of Gay and Lesbian Psychiatrists; and Medical Students for Choice.

The rule is expected to exacerbate health access barriers for women, LGBTQ people, religious minorities and those living with HIV – people who already face frequent discrimination when seeking health care. Threatened with the loss of all federal funding if they run afoul of the rule and facing confusing and unworkable requirements, many health care facilities will face strong incentives to do away with critical health care services – particularly those for women and the LGBTQ community.

Patient could be turned away because she's a lesbian

The rule could also lead to many LGBTQ patients not fully disclosing their identity and medical history for fear of discrimination, resulting in improper or incomplete care.

“This so-called ‘conscience rights’ rule is nothing but a thinly veiled attempt to codify discrimination against LGBT people, among others,” said Los Angeles LGBT Center CEO Lorri L. Jean. “It eliminates critical health care protections and puts millions of lives at risk. Moreover, it is a clear violation of civil rights laws, medical ethics and basic human values.”

“Patients at Trust Women Seattle have conveyed that they have been disrespected and demeaned by other health care providers for making independent decisions about their health care, including past and present reproductive health care choices,” said Julie Burkhart, CEO of Trust Women, which operates abortion clinics in underserved areas of Seattle.

“Our core mission is to treat all patients with dignity and compassion and, above all, respect the autonomous choices of our patients,” Burkhart continued. “This mission is our central focus because we understand that many of our patients, and many patients around the country, have been marginalized in seeking needed medical services.”

Both the Santa Clara and Baltimore lawsuits argue that the Denial of Care Rule is unconstitutional because it advances specific religious beliefs to impose harm on patients, providers and the public health generally – all in violation of the First Amendment. The lawsuits also explain how HHS violated an array of federal laws and statutes in creating the rule, including the Administrative Procedure Act, by arbitrarily and capriciously failing to consider the rule’s impact on patients and pro­viders.

“We will not tolerate this dangerous policy that puts the health of women, LGBTQ people, religious minorities and so many others in jeopardy,” said Laser. “Our government should be protecting America’s patients, not putting their lives at risk and calling it religious freedom. The Constitution does not condone this type of grave harm to others.”

AU and allies on June 11 urged the U.S. District Court in Northern California to issue a nationwide injunction that would prevent the rule from going into effect in July. AU and Baltimore filed a similar motion on June 12 in a federal court in Maryland. The requests explain that people’s lives and public health would be endangered if the rule is in place while the litigation continues.

“People’s lives are at risk if the Trump administration’s Denial of Care Rule is allowed to go into effect,” said AU Legal Director Richard B. Katskee. “This rule is so unconstitutional and unconscionable that it cannot be allowed to take effect. We urge the court to block it.”

People’s lives are at risk if the Trump administration’s Denial of Care Rule is allowed to go into effect.

~ Richard B. Katskee, AU Legal Director

The preliminary injunction motions filed with the courts include impassioned declarations from doctors and health care providers who explained how harmful the rule could be – particularly in light of the discrimination their patients have already experienced.

Sarah Henn, chief health officer of the Whitman-Walker Clinic, said the Washington, D.C., facility provided medical, dental and behavioral-health care to nearly 21,000 patients last year, just over half of whom identified as LGBTQ.

“Whitman-Walker’s patient population … includes many persons who have experienced refusals of healthcare or who have been subjected to disapproval, disrespect or hostility from medical providers and staff in hospitals, medical clinics, doctor’s offices or Emergency Medical Services personnel because of their actual or perceived sexual orientation, gender identity, gender presentation, ethnicity or race, religious affiliation, pov­erty, substance use history or for other reasons,” Henn explained.

Henn described several real-life examples of discrimination, harassment and denigration her patients have encountered at other health care facilities, including:

  • A transgender woman who needed an ultrasound for a cancer screening; one radiological technician refused to perform the procedure and another “mocked her openly” while it was underway.
  • A gay man who feared he was having a heart attack and called for an ambulance, but the EMS personnel refused to transport him and belittled him because the incident occurred while he was having sex and under the influence of drugs.
  • Fertility clinic staff who refused to assist a transgender man and his girlfriend because “they would not help people like them.”
  • A cardiologist who lectured a gay man about his “inappropriate sex life” because the man was taking an antiretroviral, Pre-Exposure Prophylaxis, or PrEP, medication that is used to avoid contracting HIV during sex.

Randy Pumphrey, senior director of behavioral health at Whitman-Walker, also offered examples of patients who’ve been harmed as a result of health workers’ personal beliefs. One such patient was a Muslim woman who had been hospitalized for suicidal ideation due to depression and PTSD-related anxiety triggered by experiences at an inpatient facility – which included a Christian nurse telling the woman that the Sept. 11, 2001, terrorist attacks were “a blessing since it woke up Christians about how bad Muslims are.” The patient reported feeling “exposed and vulnerable” and said the encounter with the nurse exacerbated her depression and anxiety.

Meanwhile, Religious Right allies of Trump have been hailing the Denial of Care Rule as a victory for those who seek to weaponize religious freedom and misuse it to discriminate against women, the LGB­TQ community, religious minorities and others.

Pediatrician refuses to treat a Muslim child

“As President Trump continues to follow through on his promises on these core issues, he will continue to have the support of social conservatives on his policy initiatives,” said Tony Perkins, president of the Family Research Council.

“I am thankful that HHS recognizes how imperiled conscience rights have been in recent years in this arena, and is actively working and leading to turn the tide in the other direction,” said Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission. “Health care professionals should be freed up to care for the bodies and minds of their patients, not tied up by having their own consciences bound.”

Kellie Fiedorek, legal counsel for Alliance Defending Freedom – a Religious Right legal group that frequently advocates for religion being used as a license to discriminate – issued a statement claiming that inviting health care workers to deny care on the basis of religion somehow “maintains respect for the Hippocratic Oath to do no harm.”

Discrimination is always wrong, but in this case, it can be deadly. Religious freedom is incredibly important. It’s the right to believe and worship as you see fit. But it’s never an excuse to discriminate. It’s never an excuse to harm others. Yet that’s exactly what the denial of care rule does. It can’t be allowed to stand.

~ Richard B. Katskee

AU’s Katskee countered that rather than doing no harm, the Denial of Care Rule encourages grievous harm.

“Discrimination is always wrong, but in this case, it can be deadly,” Katskee told reporters during a media call. “Religious freedom is incredibly important. It’s the right to believe and worship as you see fit. But it’s never an excuse to discriminate. It’s never an excuse to harm others. Yet that’s exactly what the denial of care rule does. It can’t be allowed to stand.”