Column: Facing torrent of legal challenges, Trump defers antiabortion ‘conscience’ rule
What does it take to force the Trump administration to back off from a manifestly irresponsible and ill-considered policy?
An answer may have come Friday, when the White House agreed to delay a so-called conscience rule that could have allowed even low-level hospital and medical personnel to block patient treatments to which they have a religious or moral objection. Critics warned that the rule would cast a shadow over abortions, transgender treatments, access to contraceptives and end-of-life counseling, among other services.
The rule was scheduled to go into effect July 22. But in the face of proliferating legal challenges from state, county and city governments and LGBTQ rights groups, among others, the administration agreed to defer it at least until Nov. 22. The news came via a filing in San Francisco federal court in lawsuits from California, Santa Clara County and San Francisco.
The rule emboldens individual employees to dictate whether and how patients receive healthcare based on their own personal religious views.
— Santa Clara County
The administration said it agreed to the delay so the rule could be adjudicated “on the merits,” but it’s fair to say that Trump’s advisors felt there’s a good chance that it would have been thrown out in federal court.
That’s because the rule goes far beyond the protections that have been written into federal law over the years for religious objectors to certain medical practices. In the past, those rules allowed medical professionals to refuse to provide those services, which is problematic enough.
As we’ve reported, the right of patients to receive legally- and constitutionally-protected medical services without the interference of religious zealots has been narrowing alarmingly.
One reason is the expansion of Catholic hospitals, which are subject to the Ethical and Religious Directives on healthcare promulgated by the U.S. Conference of Catholic Bishops. The directives forbid professionals in Catholic institutions to participate in elective abortions, sterilizations, services to transgender patients or end-of-life services, and give local bishops the ultimate authority.
The directives were a flashpoint that made a proposed affiliation with UC San Francisco and the Catholic hospital chain Dignity Health so controversial earlier this year. UCSF and Dignity abandoned the plan in May, when it became obvious that the university’s mission of providing healthcare free of discrimination couldn’t be reconciled with Catholic doctrine limiting medical options for women and LGBTQ patients.
According to Lawrence Gostin, a health law expert at Georgetown University, the Trump rule’s “expansive” definitions would have covered “a pharmacist refilling a prescription for contraceptives, a receptionist scheduling an appointment for sexually transmitted disease treatment, or an ambulance driver transporting a woman for an emergency abortion.”
The rule might have allowed patients to object to health services, “including children’s mental health services,” Gostin observed. It might allow parents “to object, on religious or moral grounds, to their children receiving certain health services relating to suicide prevention, hearing loss screenings for newborns, child abuse prevention and treatment, and pediatric vaccines,” he added.
“Amidst a U.S. measles outbreak, the rule could reinforce dangerous misconceptions about vaccine safety and effectiveness, placing religious beliefs above the health of children. … Conceivably, a first responder might refuse to carry or administer naloxone to rapidly reverse opioid overdose, citing an objection to encouraging drug abuse.” The rule would make no allowance for limited access to alternative providers in rural or medically underserved communities. Healthcare entities judged to violate the rule would risk losing all their federal healthcare funding.
It should be fundamentally clear that the bar allowing healthcare professionals to refuse for any reason to provide legal and medically appropriate services should be almost insurmountably high. A doctor who won’t provide a patient with a legal abortion or sterilization procedure she has opted for, or for which medical indications are present, should find a different line of work. The same goes for a pharmacist who won’t distribute contraceptives that have been prescribed.
The legal challenges filed against the Trump rule were appropriately withering. “The rule emboldens individual employees to dictate whether and how patients receive healthcare based on their own personal religious views,” stated Santa Clara in a motion filed June 11.
For San Francisco, according to the motion for an injunction filed on June 3 by City Atty. Dennis Herrera, the consequences of noncompliance could be dire: The loss of up to $1 billion in federal healthcare funding, the equivalent of one third of the budget of its Department of Public Health.
The rule took point-blank aim at a law in California requiring health insurers in the state to provide coverage for abortions. Under the Obama administration, that rule was deemed not to violate the 2004 Weldon Amendment, which forbids discriminating against a healthcare entity because it doesn’t provide, pay for or cover abortions. The government ruled that the amendment didn’t apply to health insurers that were otherwise willing to provide abortion coverage.
The Trump rule, however, states that the Obama administration decision “no longer reflects” the position of the Department of Health and Human Services.
“Conscience” exemptions for medical providers refusing to provide certain services have been a political football for years. The George W. Bush administration tried widening the protections and ordering government health officials to enforce them with a rule scheduled to go into effect on the day of Barack Obama’s inauguration, which was as good a modern redefinition of “cynicism” as one could have hoped for at the time.
Obama eventually rescinded the rule, allowing the government’s office of civil rights to investigate allegations of violation of three existing conscience protection laws.
The Trump proposal goes well beyond even Bush’s effort. Manifestly, it’s drawn from the rule book of the U.S. Catholic bishops. Like the bishops, the Trump document allows medical personnel even to provide counseling to patients about those options.
The rule’s “clear intent,” asserts Adam Sonfield of the Guttmacher Institute, which supports reproductive rights, “is to allow individuals and institutions claiming religious and moral objections to undermine a wide range of existing patient protections” by denying patients the “right to have the information they need to provide informed consent to care.”
The Trump administration larded down its rule with stringent administrative requirements that could only raise costs for hospitals and physicians. Covered entities, Gostin reported, would have to submit compliance assurances to the Department of Health and Human Services and keep compliance records.