November 2019 Church & State Magazine | Cover Story

Dozens of health care professionals have spelled out in grim detail the devastating consequences the Trump administration’s proposed Denial of Care Rule could have for patients, health care providers and the public health if federal judges allow the directive to go into effect on Nov. 22.

The Denial of Care Rule, issued by President Donald Trump’s Department of Health and Human Services (HHS) in May, invites virtually any health care worker – including doctors, nurses, paramedics, orderlies and receptionists – to deny care to any patient on the basis of the worker’s religious or moral beliefs. Anyone could be denied care, even in life-threatening circumstances, because of who they are or what medical care they’re seeking; women, LGBTQ people, patients with AIDS or HIV, and religious minorities are particularly at risk.

Threatened with the loss of crucial federal funding if they don’t comply with the rule’s confusing and unworkable requirements, health care facilities could feel forced to stop providing certain services like reproductive and LGBTQ-focused care – which is the ultimate goal of Trump and his base of religious extremists. This rule could debilitate health systems across the country, leaving millions without access to critical health care.

That’s why several lawsuits were filed shortly after the final rule was issued, including two challenges brought by Americans United and allies. One of AU’s cases was filed in California with the Center for Reproductive Rights and Lambda Legal in coordination with Santa Clara County, Calif., which runs an extensive public health and hospital system that serves as a safety-net provider for the county’s 1.9 million Bay Area residents.

Other plaintiffs in the case, County of Santa Clara v. HHS, include pro­viders focused on reproductive and LGBTQ care in Chicago; Hartford, Conn.; Los Angeles; Seattle; Washington, D.C.; and Allentown and Phila­delphia, Pa. Also joining as plaintiffs are five doctors and the medical associations The Association of LGBTQ Psychiatrists (AGLP), Health Professionals Advancing LGBTQ Equality (GLMA) and Medical Students for Choice.

The second case was filed in conjunction with the Baltimore city solicitor on behalf of the city’s mayor and council. The Baltimore City Health Department has strived to ensure that vulnerable and historically marginalized populations can seek medical care without fear of stigmatization by eradicating the very type of discrimination in health care that the Denial of Care Rule encourages. The city argues in the lawsuit Mayor and City Council of Baltimore v. Azar that the rule would endanger not only the health of vulnerable groups, but also the public health for the entire city population of about 620,000.

In the lawsuits, AU and allies argue that the rule is unlawful because HHS arbitrarily and capriciously failed to consider the potential harm to patients and health care systems. They also argue that the rule is unconstitutional in part because it favors specific religious beliefs in violation of the First Amendment.

In response to the lawsuits, HHS agreed to delay implementation of the Denial of Care Rule until Nov. 22. Federal judges in California and New York heard arguments on why the rule should be struck down in October, and judges in Maryland and Washington State are expected to hear similar arguments this month. At Church & State’s press time, no judges had made a decision on whether the rule is unlawful and should be stopped from taking effect.

Leading up to the hearings in AU’s cases, about 30 medical professionals and health care administrators affiliated with the plaintiffs offered testimony on the myriad ways the Denial of Care Rule will exacerbate discrimination, erect more barriers for people trying to access health care, make staffing more difficult and costly for providers, undermine medical training and the medical knowledge of the next generation of heath care workers and above all, put people’s lives at risk.

Here are some of their concerns:

Detriments To Public Health

Health professionals in Baltimore and Santa Clara explained that for every patient who is denied care, the negative health implications ripple beyond that individual into the community at large. Sexually transmitted diseases (STDs) could be spread if they go untreated or if medications that can help prevent HIV aren’t provided. A rise in unintended pregnancies because of the unavailability of birth control, abortions and other reproductive care can domino into a host of socioeconomic challenges. A refusal to provide immunizations can cause preventable diseases to spread through a community.

In short, the experts tasked with protecting the public health in Baltimore and Santa Clara County are worried not only about the people most likely to be denied care; they fear for the entire combined 2.5 million people who rely on the public health departments to keep them healthy.

“Refusals under such a rule would result in denials of timely care to Baltimore residents, and it is hard to overstate the harms that would follow, both for individual patients denied care and for public health in Baltimore at the population level,” said Rebecca S. Dineen, assistant commissioner for the Baltimore City Health Department (BCHD) Bureau of Maternal and Child Health.

Dineen and her colleagues explained that part of BCHD’s mission includes encouraging members of historically marginalized communities – including people of color, people who are impoverished or homeless, LGBTQ residents, people living with HIV or AIDS, and individuals with drug or alcohol addictions – to trust that the city’s public health providers will treat all people with dignity and respect. BCHD has strived to eliminate stigma, discrimination and other barriers that have prevented people from seeking health care in the past.

“I have grave concerns that any regulation that may grant healthcare employees the unqualified right to refuse to treat, assist, or refer patients for care would undermine the Health Department’s years of work persuading Baltimore residents to seek and accept care and would threaten the overall public health,” Dineen said. “The consequences may be devastating.”

“I have grave concerns that any regulation that may grant healthcare employees the unqualified right to refuse to treat, assist, or refer patients for care would undermine the Health Department’s years of work persuading Baltimore residents to seek and accept care and would threaten the overall public health,” Dineen said. “The consequences may be devastating.”

Dr. Adena Greenbaum, BCHD’s assistant commissioner overseeing the Bureau of Clinical Services and HIV/ ­STD Prevention Services, agreed: “Any disruption in these efforts, especially through interference that impedes pub­lic-health efforts in mar­ginalized communities, can set programs back years, if not decades. And those setbacks could threaten the broader population with devastating harms, including increased prevalence of tube­rculosis, HIV, sexually transmitted diseases, teen pregnancies, infant deaths, and opioid overdoses.”

Greenbaum offered a stark summary: “Baltimoreans’ health and very lives are at stake.”

Those sentiments were echoed by officials in Santa Clara, where Sara Cody, director of the county’s public health department, estimated about 25 percent of the county’s population is considered vulnerable because they are members of the LGBTQ community, low-income residents, people who abuse controlled substances, or pregnant young women.

The Denial of Care Rule and its threat to withhold federal funding “would compromise the Public Health Department’s ability to prevent public health emergencies and outbreaks, to prevent chronic diseases, to provide equal opportunity to vulnerable children for a healthy start and optimal health, and to foster healthy families and healthy communities,” Cody said.

Equally alarming is the impact the rule could have on emergency services. James Matz, battalion chief of emergency medical services for the Fire Department of Baltimore City, and Ken Miller, medical director for Santa Clara’s EMS Agency, both said critical care could be delayed and patients’ lives put at risk if EMS employees re­fuse to treat people in emergencies.

“[T]he Rule will create an impossible dilemma for Baltimore EMS and will endanger the lives of the people we serve,” Matz said. “If any employee on a medic unit decided, at the scene of a call, that they could not perform their job for religious, moral, or ‘other’ reasons, the results could be catastrophic.”

Discrimination Against LGBTQ People

“By empowering health­care staff to think that they have the right to act on their personal beliefs, even at the expense of patient needs, the Denial-of-Care Rule is very likely to result in many more incidents of discrimination and greater harm to LGBT individuals and patients living with HIV who are struggling with mental health or substance use issues.”

The rule could exacerbate the harassment and discrimination already faced by the LGBTQ community, according to administrators from AU’s LGBTQ-focused health provider clients: ­the Bradbury-Sullivan LGBT Community Center in Pennsylvania, Center on Halsted in Chicago, Los Angeles LGBT Center, Mazzoni Center in Philadelphia and Whitman-Walker Clinic in Washington, D.C.

“Over the twenty years I have been at the Center I have listened to the stories of countless individuals who have suffered overtly homophobic remarks from healthcare providers and who were either refused care or given clearly inadequate and inappropriate care because of their sexual orientation or gender identities,” said Robert Bolan, chief medical officer and director of clinical re­search at the Los Angeles LGBT Center.

The health providers listed example after infuriating example of LGBTQ people being belittled or turned away when seeking care: a transgender woman who waited more than six years until her condition was life-threatening to have defective breast implants removed after a surgeon refused to treat her because of her gender identity; a dialysis clinic employee who objected to being involved in the care of an LGBTQ patient with end-stage renal disease; an LGBTQ person being treated at an inpatient facility who was forced to participate in conversion therapy; a transgender woman who was mocked and intentionally misgendered by her anesthesiologist moments before she was anesthetized for inner ear surgery; a gay man who feared he was having a heart attack who was derided by a paramedic who refused to take the patient to a hospital; a transgender woman who needed an ultrasound for her cancer treatment and was denied by one radiologist and insulted by another.

“These incidents reveal that many healthcare providers and other staff harbor explicit or implicit biases against LGBT people and people living with HIV. Because of legal requirements, healthcare facility non-discrimination policies, and profes­sional norms, many of them have kept their personal beliefs and feelings in check,” said Ward Carpenter, co-director of health services at the Los Angeles LGBT Center. “By empowering health­care staff to think that they have the right to act on their personal beliefs, even at the expense of patient needs, the Denial-of-Care Rule is very likely to result in many more incidents of discrimination and greater harm to LGBT individuals and patients living with HIV who are struggling with mental health or substance use issues.”

In addition to discouraging people from seeking care at all, the Denial of Care Rule would also discourage patients from disclosing important information about their sexual orientation, gender identity and other aspects of their lives out of fear that they’ll be judged, harassed or turned away, the experts said.

More Barriers To Reproductive Care

Similar to the LGBTQ community, people seeking reproductive care also routinely face religion-based discrimination, said Dr. Colleen P. McNicholas, the medical director of Trust Women clinics in Washington, Oklahoma and Kansas.

“In both instances, patients face tremendous stigma,” she said. “Their health – and, more broadly, their lives – are inappropriately influenced by ideology and unscientific rhetoric. The consequences of these realities are that our system allows for systemic discrimination, intentional oppression, and overt acceptance that the health and wellbeing of some is more important than that of others.”

McNicholas noted that, thanks to ongoing attacks on reproductive care and state restrictions on abortion, the number of clinics providing abortions decreased by 17 percent from 2011 to 2014. Nearly 90 percent of U.S. counties have no abortion providers, and several states only have one abortion clinic left. Additionally, there have been more barriers erected for those trying to access birth control – pharmacists refusing to provide over-the-counter emergency contraception and providers refusing to provide intra-uterine devices (IUDs), not to mention the Trump administration’s proposed rules that would allow em­ployers and universities to deny employees and students health insurance coverage for birth control.

“The Denial of Care Rule threatens to exacerbate this preexisting lack of access to abortion, contraception, and LGBTQIA-specific care,” McNicholas said. “The Rule also further stigmatizes abortion, contraception, and care to LGBTQIA communities.

“The Denial of Care Rule threatens to exacerbate this preexisting lack of access to abortion, contraception, and LGBTQIA-specific care,” McNicholas said. “The Rule also further stigmatizes abortion, contraception, and care to LGBTQIA communities. By specifically highlighting these types of care as religiously or morally objectionable the Rule suggests that the services are not common, necessary, and important to maintain health, and furthermore suggests that only certain Americans are deserving of comprehensive and dignified healthcare.”

McNicholas and officials from Medical Students for Choice (MSFC), another AU client, explained that as comprehensive reproductive care becomes less available, the training opportunities for medical students will also become less available – establishing an unsustainable cycle that will result in even fewer providers.

“Even without the Rule, reproductive healthcare is already being pushed out of mainstream healthcare at numerous hospitals across the country, and patients face a multitude of unnecessary ba­rriers when trying to obtain basic family planning services,” said Rachael Phelps, medical director of MSFC.

All of the health professionals said even if they were willing to grant employees carte blanche to discriminate against patients and undermine their facilities’ missions of providing compassionate care in an atmosphere that welcomes everyone in need, they couldn’t cover the extreme expense that would be needed to double- or even triple-staff their facilities to cover any spur-of-the-moment refusals by employees. Not to mention the additional costs of treating an influx of patients turned away by other facilities or seeking referrals to welcoming health care providers.

Above all, the medical professionals said the rule betrays the mantra of “do no harm” that is core to both health care and religious freedom.

“The Denial-of-Care Rule’s message that healthcare providers could be legally entitled to refuse or restrict care, based on their personal religious or moral beliefs, flies in the face of the standards and ethics of every healthcare profession, and would sow confusion and undermine the entire healthcare system,” said Naseema Shafi, chief executive officer of Whitman-Walker Clinic. “Healthcare is a fundamentally patient-oriented endeavor and the Denial-of-Care Rule’s sweeping right to avoid ‘complicity,’ with complete disregard for the harm that might result to others, is legally, morally, and medically unsupportable.”