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Opinion

HIV Community Responds to New HHS 'Conscience and Religious Freedom Division'

January 19, 2018

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Credit: chris2766 for iStock via Thinkstock


On Thursday, Health and Human Services (HHS) announced the formation of a new office, Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR). According to the HHS website "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." The office is seen by many as an effort to give a legal cover for a provider or health care institution to deny treatment or care to any person based on religious or moral grounds, which can include LGBT people and people with HIV. Similarly, it's not just the kind of people, it's the kind of care that can be denied on similar grounds. Often, abortion and reproductive care are the most discussed. But what if a provider decided not to prescribe pre-exposure prophylaxis (PrEP) or antiretroviral medication based on what they claimed were religious or moral reasons? This new office and its mission is one more way to undermine the HHS rules established under the Affordable Care Act to penalize providers and healthcare institutions from discriminating against patients -- particularly LGBT patients.

A growing outcry against this office and its agenda is happening from organizations that are comprised of and serve people living with HIV. The following is a roundup of responses from the HIV community about the potential impact of this new office.


From a joint statement by AIDS United, NASTAD, National Coalition of STD Directors, NMAC, and The AIDS Institute:

To those of us who work to promote the health of LGBTQ people, those living with HIV, including people of color, and other marginalized communities, we recognize this as dog-whistle politics and an attempt at state-sanctioned discrimination.

The Trump administration is extending federal, legal cover to providers who can potentially deny medical care for transgender individuals, women, or same-sex couples, including the full range of reproductive health services and any other procedure an employee or licensed health facility may object to, on so-called "moral" grounds. The new division will invite health professionals to misinterpret and ignore current legal and medical standards, putting the health and safety of patients at risk.

... no one should be denied medical care because their doctor or provider objects to their sexual orientation, gender identity, or reproductive autonomy. LGBTQ and other minority and marginalized communities, especially those living with HIV, already face discrimination and significant barriers to accessing critical prevention and care services.


Related: Discrimination Against People With HIV Is Illegal. Here's What to Do if It Happens to You


From a joint statement by Project Inform and California HIV Alliance:

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We join with the true moral majority in condemning today's establishment of the so-called Conscience and Religious Freedom Division in the Office for Civil Rights of the Department of Health and Human Services and its directive to allow healthcare workers to refuse to perform, accommodate, or assist with health-care services on religious or moral grounds.

This effectively eviscerates the very purpose of Department of Health and Human Services to protect the health of all Americans and provide essential human services, especially for those least able to help themselves.

This is an attack on our civil rights, allowing one person's extreme religious beliefs to be forced upon people of all faiths and anyone who simply does not share them. That is not religious freedom; it is religious tyranny.


From a statement by Positive Women's Network - USA:

This is nothing more than dangerous doublespeak and transforms the OCR's mission from protecting the American people from discrimination to enabling and abetting it.

"Religious freedom" is no more than code for "license to discriminate" and dismantle dignity.

Positive Women's Network - USA condemns this shameful transformation of the very agency established to protect patients from discrimination into one that facilitates it and impedes care in the process. With their actions, the administration has cruelly placed women and LGBTQ communities in the crosshairs as targets for government-sanctioned denial of life-saving care. This is an outrage, and we will never stop fighting until health care is an undeniable, inalienable human right, recognized at all levels of government.


From a statement by HIV Medicine Association chair Melanie Thompson, M.D.:

While the examples given during the announcement of this regressive policy and approach to healthcare today focused on assisted suicide and abortion services, its impacts will go well beyond those examples, shifting the foundation for medical decisions ranging from basic preventive services to lifesaving care and treatment -- from sound, scientific practice to healthcare providers' personal beliefs.

Allowing healthcare providers including large institutions to discriminate in how and who they treat will harm individuals and will obstruct America's public health response to the HIV and STD epidemics. As medical providers, we emphasize that all health care providers have an ethical and professional obligation to provide all patients with humane and competent medical treatment and care. The legislative, judicial, and executive branches have an ethical and legal responsibility to ensure that this occurs, and we must hold them accountable when they fall short.


From a statement by Treatment Action Group:

The creation of a "Conscience and Religious Freedom" division of the Department of Health and Human Services elevates a false narrative that equates discrimination with the vague, ill-defined notion of "religious conscience" and has the potential to dramatically endanger the lives of the women and LGBTQ individuals it is meant to target.

Whereas the administration claims the new division will be limited in its scope -- defending health care providers with religious objections to medical abortion or assisted suicide -- it will go beyond further polarization of the personal health needs of women and the terminally ill. It borrows acrimonious terminology from state-level "religious freedom" initiatives to deny any number of services to transgender people and other members of the LGBTQ community. Such discrimination flies in the face of the foundational commitment by medical professionals to "do no harm."

May this latest attack on vulnerable communities lead all advocates for health equity in America to redouble our efforts in resisting all attempts by the Trump Administration and the GOP to worsen health disparities and sabotage healthcare access.


From a statement by the National Coalition for LGBT Health:

"HHS should be committed to giving LGBT people the access to health care that they need," said Michael Beyer, Advocacy Manager at the National Coalition for LGBT Health. "HHS should be enforcing civil rights laws protecting LGBT people from discrimination in federal government programs, instead of creating more barriers for LGBT people to access health care."

Many LGBT people already avoid seeking care because they fear discrimination. According to a 2017 poll conducted for National Public Radio, the Robert Wood Johnson Foundation, and Harvard T.H. Chan School of Public Health, 22 percent of transgender people say they have avoided doctors or health care out of concern that they would face discrimination. A 2017 survey from the Center for American Progress found that 41 percent of LGBTQ people in small towns and rural areas would find it very difficult or not possible to find alternative services if a hospital refused to serve them.


From a statement by Human Rights Campaign:

"LGBTQ people need the Department of Health and Human Services to enforce non-discrimination protections in federal health programs. 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. " said Sarah Warbelow, HRC Legal Director. "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."

HHS Assistant Secretary for Civil Rights Roger Severino justified creation of the office based on a small number of complaints last year and over the past decade. The HHS announcement lacked any details about funding for the new division, including where existing programs will be cut to fund it.


From an analysis by Lambda Legal:

The work of this proposed new division defies the avoid-harm-to-others test in multiple ways. First, it is inconsistent with two core constitutional guarantees: (1) each of us is entitled to equal protection under law; and (2) our government must not elevate the religious wishes of some above the needs of others to be protected from harm, including the harms of discrimination. In addition, all federal agencies must comply with the federal statutes that protect LGBT people and others from discrimination, specifically including the Affordable Care Act. The new proposal also wrongfully elevates religious dogma above medical ethics rules that forbid health professionals from discriminating against patients based on gender identity, sexual orientation, sex, or other invidious grounds.

The "Conscience and Religious Freedom Division" to be created within HHS's Office of Civil Rights is explicitly intended to facilitate refusals of medically necessary health care in the name of religion. The potential consequences for patients will range from life-endangerment to harassment that deters accessing of care, which harms both individuals and public health. By elevating religious interests this way, the misguided new policy invites health professionals to disregard both governing law and medical standards, not only threatening patients' health but also risking their own legal liability.

Lambda Legal is prepared to act on behalf of patients wrongfully denied medical care or otherwise mistreated as a result of this improper elevation of religious interests. Anyone who experiences harassment, denial of service, or other discrimination in health care services on the basis of gender identity, sexual orientation, or HIV status is encouraged to contact Lambda Legal by visiting www.lambdalegal.org/healthcarehelp or calling toll-free at 866-542-8336.


From AIDS Project Rhode Island:


From the Natonal LGBTQ Task Force:


From PFLAG:


From Lambda Legal CEO Rachel B. Tiven:


Kenyon Farrow is the senior editor of TheBody.com and TheBodyPRO.com. Follow Kenyon on Twitter: @kenyonfarrow.

Ken Stockwell is associate editor and senior web producer at TheBody.com and TheBodyPRO.com.


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