As the nation mourns the loss of over 100,000 Americans from coronavirus, the Trump administration released a final rule gutting nondiscrimination protections in healthcare and insurance coverage. On June 12, 2020, the U.S. Department of Health and Human Services announced changes to the Health Care Rights Law (Section 1557 of the Affordable Care Act) that will place essential care further out of reach for LGBTQ+ people, women, people with limited English proficiency, and many others.
The new rule also empowers providers – hospitals, insurers, doctors, nurses, and others who work in the healthcare industry – to turn patients away or deny care under the guise of religious freedom. The First Amendment protects the right to believe as we choose without fear of discrimination or coercion. But the final rule vastly distorts this basic constitutional principle by granting providers and healthcare entities the ability to impose their personal beliefs on patients, endangering their health and undermining their autonomy.
Nearly a year before it was released, Interfaith Alliance warned HHS that, if finalized in its current form, the rule would unconstitutionally interfere with the rights of individuals to make healthcare decisions consistent with their own beliefs, not the beliefs of their doctor or insurance provider. But now, for many patients, this rule will prevent them from even getting through the door.
About the Health Care Rights Law
Signed into law in 2010, the Patient Protection Affordable Care Act (often referred to as the ACA) transformed the accessibility and scope of healthcare benefits available to millions of Americans. Though not a perfect fix, the ACA has reduced healthcare costs for individuals and employers, reduced the number of individuals without insurance to historic lows, and guaranteed full and equitable access to essential services without discrimination.
The Health Care Rights Law has been a critical mechanism for ensuring all patients have meaningful access to healthcare, regardless of who they are. Finalized in 2016, Section 1557 prohibits hospitals, doctors, and insurers from discriminating against individuals on the basis of race, color, national origin, sex, age, or disability in certain healthcare programs and activities. It is also the first federal law explicitly prohibiting discrimination in healthcare on the basis of sex, including pregnancy, sex stereotyping (including sexual orientation and gender expression), and gender identity.
But in 2019, the Trump administration began the process of removing many of these protections, impairing access to critical services for communities who need them most and continuing a cross-agency effort to rescind protections for LGBTQ+ people.
The New Rule Will Make It Harder – Not Easier – To Access Healthcare During a Pandemic
By distorting the meaning of religious freedom, the final rule permits healthcare entities and workers to interfere with patients’ ability to make deeply personal decisions consistent with their beliefs and needs. Additionally, the final rule will undo key components of the healthcare nondiscrimination provisions, leaving millions of patients at risk of being denied care.
Section 1557 originally incorporated existing protections for direct service providers like doctors and nurses who objected to certain medical services on religious grounds. These conscience exemptions were limited and, as in the dispute over birth control coverage under consideration by the Supreme Court, offered alternative means for patients and insurance beneficiaries to access the care they need.
The new final rule, however, dramatically expands who can claim an exemption – anyone involved in healthcare provision, including workers who do not interact with patients – and who bears the burden. LGBTQ+ people, women, and patients who do not share their provider’s beliefs may find themselves cut off from much-needed care simply because of who they are. Discrimination and other civil rights violations are harmful no matter the reason. However, by distorting conscience exemptions well beyond their limited scope, this rule will authorize and encourage these violations.
Compounding this danger, the rule also repeals the definition of “on the basis of sex” that prohibited discrimination on the basis of sex stereotyping (including sexual orientation and gender expression), gender identity, and pregnancy. A study by the Center for American Progress found that nearly one in five LGBTQ+ people, including 31% of transgender people, said that it would be very difficult or impossible to access care at another hospital if they were turned away. That rate was substantially higher for LGBTQ+ people living in nonmetropolitan areas, with 41% reporting that it would be very difficult or impossible to find an alternative provider.
The rule also removes nondiscrimination protections from federal programs for the elderly, loosens requirements to provide language access for patients with limited English proficiency, and eliminates entities’ obligation to notify patients of their rights and how to file a complaint.
A Giant Step Backward
These changes turn back the clock on efforts to reform our healthcare system to better meet patients’ needs. We are often at our most vulnerable when we seek the assistance of medical professionals. When someone is denied the care they need, the message they receive is that their pain is not worthy of attention. For many, finding an alternative provider is all but impossible based on where they live or their source of insurance. Others will carry the shame they experienced for years to come, avoiding necessary care to protect themselves from further indignities.
The revocation of essential nondiscrimination provisions will be profoundly damaging for patients and providers of all faiths and of none – at a time when our nation is struggling to meet an urgent health crisis. With this rule, the Trump administration has placed the interests of the Religious Right before all others, to our collective detriment.
Learn more about our work to combat the misuse of religious freedom to cause harm.