HHS Moves to Protect Religious Health Providers

Admin aims to overturn Obama era mandates on gender identity and abortion

Alex Azar
Alex Azar / Getty Images

The Trump administration issued a new proposal that would safeguard the conscience rights of hospitals and doctors.

On Friday, the Department of Health and Human Services issued a new rule to reverse an Obama-era regulation that would have allowed those seeking abortions or sex changes to sue providers for discrimination. Obama-era regulators had attempted to expand anti-discrimination language in the Affordable Care Act to include gender identity and termination of a pregnancy. The Trump administration is seeking to return to the previous anti-discrimination standard covering race, color, national origin, disability, age, and sex. The agency said this could save "billions of dollars in undue regulatory burdens, further substantive compliance, [and] reduce confusion" over federal discrimination measures.

"In order to better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557, the Department proposes … to eliminate provisions that are inconsistent or redundant with pre-existing civil rights statutes," the department said in a proposal published to the Federal Register on Friday. "The Department believes that the [Obama] Rule exceeded its authority … adopted erroneous and inconsistent interpretations of civil rights law, caused confusion, and imposed unjustified and unnecessary costs."

The announcement came after Obama's rule had been challenged in separate lawsuits for departing from the text of Title IX's definition of sex discrimination. Two federal courts have enjoined that rule from taking effect because they were "likely unlawful," according to HHS. The department pointed to the litigation as further evidence that President Obama had exceeded his authority. It said the proposal would "properly give effect to religious liberty and conscience protections" over the issue of abortion.

Lori Windham, a senior counsel at the Becket Fund for Religious Liberty, a pro-bono law firm, welcomed the new rule. She said the transgender discrimination mandate would affect the available treatments for gender dysphoria and harm doctors' ability to treat their patients.

"The transgender mandate allowed the government to insert itself into the private, irreversible, and sensitive medical decisions," she said in a statement. "Now patients can be reassured knowing their doctors are free to follow their best medical judgment as well as the most accepted medical research, including research relied on by HHS medical experts themselves. This new rule follows medical consensus and common sense."

Gay rights groups criticized the decision, saying that it would "undermine crucial" discrimination guidelines. David Stacy, spokesman for the Human Rights Campaign, called the Obama rule "crucial."

"The Trump-Pence administration's latest attack threatens to undermine crucial non-discrimination protections for LGBTQ people provided for under the Affordable Care Act," he said in a release. "The administration puts LGBTQ people at greater risk of being denied necessary and appropriate health care solely based on their sexual orientation or gender identity."

The agency's Office of Civil Rights Director Roger Severino said regulators will continue to enforce existing discrimination protections. He said the Obama administration's actions would have driven up the costs of healthcare and limit access "without achieving the intended results."

"When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform," Severino said in the agency announcement. "The American people are tired of unnecessary regulations getting in the way of access to affordable healthcare, and today's proposal would remove $3.6 billion in regulatory burdens that are ultimately being passed down to patients."

Terry Schilling, a spokesman for the American Principles Project, praised the administration for defending doctors' right to treat their patients. The new standard will allow medical professionals and facilities from the overreach of "a dangerous ideology" and continue to practice medicine acknowledging the "biological reality" of a patient's sex. He said the medical community should not have debate stifled.

"Regardless of your politics, the idea that doctors should be forced by law to perform abortions and sex-change surgeries on any patient who requests these controversial procedures is absolutely insane," Schilling said in a statement. "Our society is still engaged in an active conversation about how best to care for individuals suffering from gender dysphoria."

Pro-life groups also praised HHS for taking action on the rule's abortion language. Students for Life of America president Kristan Hawkins said the previous rule would squeeze out pro-life doctors and favor only those who favor abortion.

"Pregnancy is not a disease cured by abortion. A bias in favor of abortion should not be our policy, as pregnant and parenting women deserve support and assistance, rather than pressure to end a child’s life," Hawkins said in a release. "The prejudice against pregnant women and in favor of abortion should be stripped from the law in favor of life-affirming care."

The proposed rule is now under a 60-day public comment period in which interest groups can weigh in on the issue.