New Trump Rule Protects Health Care Workers Who Refuse Care For Religious Reasons

May 2, 2019
Originally published on May 24, 2019 11:31 am

The Trump administration issued a new rule Thursday that gives health care workers leeway to refuse to provide services like abortion, sterilization or assisted suicide, if they cite a religious or conscientious objection.

The rule, issued by the Department of Health and Human Services, is designed to protect the religious rights of health care providers and religious institutions.

According to a statement issued by HHS's Office for Civil Rights, the new rule affirms existing conscience protections established by Congress.

"This rule ensures that healthcare entities and professionals won't be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life," OCR Director Roger Severino said in a written statement. "Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it's the law."

Last year Severino made it clear that defending religious freedom was his primary goal when he created a new Division of Conscience and Religious Freedom. "Never forget that religious freedom is a primary freedom, that it is a civil right that deserves enforcement and respect," Severino said when he created the division.

As part of that change in focus, HHS in the last week also changed the Office for Civil Rights' mission statement to highlight its focus on protecting religious freedom.

Until last week, the website said the office's mission was to "improve the health and well-being of people across the nation" and to ensure people have equal access to health care services provided by HHS. But the new statement repositions the OCR as a law enforcement agency that enforces civil rights laws, and conscience and religious freedom laws, and "protects that exercise of religious beliefs and moral convictions by individuals and institutions."

That change, which was first noted by the Sunlight Foundation, dovetails with the new rule issued Thursday.

The rule finalized Thursday allows health care workers who have a "religious or conscience" objection to medical procedures such as birth control or sterilization to refuse to participate in those procedures, even in a tangential way. This represents an expansion of existing protections.

"This rule allows anyone from a doctor to a receptionist to entities like hospitals and pharmacies to deny a patient critical — and sometimes lifesaving — care," said Fatima Goss Graves, president and CEO of the National Women's Law Center, in a statement.

Louise Melling, deputy legal director at the American Civil Liberties Union, says the rule offers health care providers broad leeway to refuse women reproductive care, such as an emergency abortion to protect the life or health of the mother, if they claim the procedure offends their conscience. The rule protects health care workers who have indirect involvement in such procedures, as long as their roles have an "articulable connection" to a procedure such as abortion, sterilization or even administration of birth control.

"If I am the person who checks you into the hospital, that's an articulable connection. If I'm the person who would take your blood pressure, that would be an articulable connection," she says.

The rule applies to individuals and also to entire institutions, such as religious hospitals.

"This rule is consistent with decades of federal conscience law," said Jonathan Imbody, vice president of government relations at the Christian Medical Association. "Education about and enforcement of these laws has long been neglected."

The group has dozens of stories on its website of health care providers who say they were punished because of their religious or conscience objections, including an OB-GYN whose malpractice insurance company said it wouldn't cover her if she refused to inseminate a lesbian and an anesthesiologist who refused to participate in an abortion and objected to referring a patient seeking one to another doctor when he refused to participate.

In its rule, HHS cited a case, Means v. the U.S. Conference of Catholic Bishops, in which a woman sued the church because she was denied an emergency abortion, was sent home multiple times by a Catholic hospital and ended up with an acute infection after she miscarried.

The agency said the lawsuit filed by the patient is an example of hospitals being coerced to perform abortions against their will. The ACLU, however, says that same case shows that health care providers should not be allowed to put their religious beliefs ahead of the health of their patients.

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The federal Department of Health and Human Services has issued a new rule that governs discrimination in health care. It gives health care providers more leeway to refuse to provide services like abortion, sterilization or assisted suicide. All they need to do is cite a religious or conscience objection. Here explain all of this is NPR health policy correspondent Alison Kodjak. Hey, Alison.


CHANG: So can you just tell me what's happening here? What is HHS changing in terms of the rules that affect health care providers and hospitals?

KODJAK: So the rule is really a statement of priorities for HHS and particularly for its Office for Civil Rights. It shows that the agency is, you know, focused on protecting the religious convictions of health care providers and anyone who works in a health care setting, in fact. And it's protecting those perhaps over the rights of patients to get the care they want and need. Doctors, nurses already had the right in most cases to refuse to participate in abortions and other procedures. Here's Roger Severino. He's the head of the Office for Civil Rights. Here's how he describes it.

ROGER SEVERINO: No new law is being made here. What is being done is the provision of enforcement tools for existing conscience and religious freedom protections in health care.

CHANG: Why are they doing this now then?

KODJAK: So I think there are really two answers to that question. Number one is sort of immediate. Today is National Prayer Day, and this morning the president was able to announce these new rules at the National Prayer Breakfast.


PRESIDENT DONALD TRUMP: Just today we finalized new protections of conscience rights for physicians, pharmacists, nurses, teachers, students and faith-based charities.


KODJAK: And also the 2020 election campaign is heating up, and the president has a very strong following among religious conservatives. So this plays well with those voters who are opposed to birth control, abortions and some other types of medical care.

CHANG: Can you explain the impact you think this will have on patients? Like, say I want to get birth control. I live in a rural town, but the only doctor in town has moral or religious objections to contraception. What do I do? Do I have any legal recourse if he or she refuses?

KODJAK: Yeah, no, this rule actually gives that person - the pharmacist, the doctor - more protections to refuse care. And it isn't just the doctor. It's almost anyone who works in a health care setting. So if you cannot get birth control at your pharmacy or through your doctor's office, you may have to travel - who knows? - for hours if it's a rural area. What this rule does - it says not only do you have no recourse, but the doctor or pharmacist could have recourse themselves if their employer required them to provide that contraception.

CHANG: But this isn't just about birth control or abortion, right? What are the other health care services that this rules change could affect?

KODJAK: You know, it could go pretty far. It could extend to in vitro fertilization or other fertility treatments. It could affect end-of-life care. So imagine, like, I have a stroke, and I'm taken to a Catholic hospital. If the physicians determine that I won't recover, the hospital still could refuse to allow my family to remove life support even if I had an advanced directive, a living will that said I didn't want it. And right now religious hospitals are a major subset of the health care industry, and they're very concentrated in some areas. So in some cases, patients won't always have a choice.

CHANG: That's NPR health policy correspondent Alison Kodjak. Thanks, Alison.

KODJAK: Thanks, Ailsa. Transcript provided by NPR, Copyright NPR.