On 18 January 2018, the U.S. Department of Health and Human Services (HHS) announced that they would expand protections for health care providers who refuse to provide abortion-related care or apply anti-discrimination protections against certain clients for religious reasons:
Today, the U.S. Department of Health and Human Services (HHS) is pleased to announce the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR).
The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom. OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information. The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.
OCR already has enforcement authority over federal conscience protection statutes, such as the Church, Coats-Snowe, and Weldon Amendments; Section 1553 of the Affordable Care Act (on assisted suicide); and certain federal nondiscrimination laws that prohibit discrimination on the basis of religion in a variety of HHS programs.
OCR Director Severino said, “Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.”
Acting HHS Secretary Hargan said, “President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom. That promise is being kept today. The Founding Fathers knew that a nation that respects conscience rights is more diverse and more free, and OCR’s new division will help make that vision a reality.”
The announcement quickly led to criticism and threats of potential legal action from pro-LGBTQ advocacy groups. Louise Melling, deputy legal director of the American Civil Liberties Union, told us in a statement:
We may not know exactly what this new division will look like in practice, but we do know that this means they prioritize religious liberty over the health and civil rights of women, transgender people, and others. They are prioritizing providers’ beliefs over patients’ health and lives.
In a separate statement, HHS indicated that they would follow a 31 December 2016 order issued by U.S. District Judge Reed O'Connor, who determined that the agency could not require that anti-discrimination protections for patients mandated by the Affordable Care Act cover gender identity as well as services relating to abortion:
It is incorrect to say that laws that explicitly prohibit discrimination on the basis of, for example, a nurse's refusal to participate in an abortion, are themselves discriminatory. The new Conscience and Religious Freedom Division will simply be enforcing important bi-partisan conscience protection laws that have been on the books, in some cases, for decades.
Additionally, [O'Connor] has ordered that the Department of Health and Human Services cannot interpret prohibitions on sex discrimination in health care programs to cover gender identity, and the Department is abiding by that order as required.
O'Connor, who was appointed to the bench by then-President President George W. Bush in 2007, wrote that "Plaintiffs will be forced to either violate their religious beliefs or maintain their current policies which seem to be in direct conflict with the Rule and risk the severe consequences of enforcement."
Severino had objected to the idea of gender identity applying to patient protections before taking his position at HHS, and in January 2016 he co-authored a report for the conservative group the Heritage Foundation stating that such regulations would "lead to unreasonable and costly litigation" for health care providers and insurers, among others:
They effectively require controversial procedures, such as "sex-reassignment" surgery, that respected medical professionals argue have not been proven to be effective in treating serious mental health conditions. Rather than respect the diversity of opinions on sensitive and controversial health care issues, the proposed regulations endorse and enforce one side of the debate and trample on the freedom of conscience of many in the medical community.
The ACLU warned on their Twitter account that should the department's new initiative proceed, "we will see them in court." The Human Rights Campaign also criticized the HHS announcement, saying that they would continue to make sure that "bigotry has no place" in the health care arena:
The creation of an unnecessary new division that is likely to promote a license to discriminate diverts needed enforcement resources and encourages discrimination against LGBTQ people. Every American deserves access to quality health care, and that should not be determined by the personal opinions of individual medical providers or administrative staff.