Today, Lambda Legal, Americans United for Separation of Church and State and the Center for Reproductive Rights filed a lawsuit challenging the "Denial of Care" Rule issued earlier this month by the U.S. Department of Health and Human Services. In the lawsuit (County of Santa Clara vs. HHS), filed in the U.S. District Court for the Northern District of California in coordination with Santa Clara County, the organizations are representing Trust Women Seattle, Hartford GYN, Whitman-Walker Health, Bradbury-Sullivan LGBT Community Center, Los Angeles LGBT Center, Center on Halsted, Mazzoni Center, GLMA, AGLP: The Association of LGBTQ+ Psychiatrists, Medical Students for Choice and various physicians. Mayer Brown, LLP is serving as pro bono counsel.
The new regulation invites health care workers – doctors, nurses, EMTs, administrators and clerical staff – to deny medical treatment and services to patients because of personal religious or moral beliefs. Health care facilities that do not comply risk losing federal funding. The regulation will cause mass confusion among health care providers and is completely infeasible to implement. As a result, health care facilities may do away with reproductive and LGBTQ services altogether, leaving millions without access to critical health care.
The lawsuit argues that the rule is unconstitutional because it advances specific religious beliefs in violation of the First Amendment; violates patients' rights to privacy, liberty and equal dignity as guaranteed by the Fifth Amendment; and chills patients' speech and expression in violation of the First Amendment, all to the detriment of patients' health and well-being. The lawsuit also asserts that HHS violated the federal Administrative Procedure Act in creating the rule by arbitrarily and capriciously failing to consider the impact on patients.
"The breadth of the harm this new rule will cause is impossible to exaggerate, and opens up yet another front in the Trump Administration's assault on civil rights of minorities and already marginalized, vulnerable populations," Lambda Legal Senior Attorney Jamie Gliksberg said. "This almost limitless invitation to discriminate will inevitably result in women, LGBT people and religious minorities facing hostile health care workers and denials of medical care at moments of greatest need, where any delay could be fatal."
"Discrimination in the delivery of health care can be a matter of life or death. This new policy could threaten anyone seeking medical care in this country, but will fall particularly hard on women and LGBTQ patients," said Nancy Northup, president & CEO of The Center for Reproductive Rights. "The Trump Administration is skirting Congressional approval to push through this extreme and dangerous policy. It's a glaring violation of patients' right to equal treatment."
"The Trump administration will stop at nothing to sanction discrimination in the name of religion in every facet of our lives," said Rachel Laser, president and CEO of Americans United. "We will not tolerate this dangerous policy that puts the health of women, LGBTQ people, religious minorities and so many others in jeopardy. Our government should be protecting America's patients, not putting their lives at risk and calling it religious freedom. The Constitution does not condone this type of grave harm to others."
"This rule encourages discrimination against vulnerable patients already facing barriers to care," said James R. Williams, Santa Clara County Counsel. "It places an enormous burden on public health care networks like the County's, which already have robust protections in place to accommodate employees' religious objections without compromising care to the communities we serve."
The rule applies to all health care facilities that receive federal funding through HHS, which includes most hospitals. Threatened with the loss of all federal funding and facing confusing and unworkable requirements, many health care facilities will face strong incentives to do away with critical health care services for women and the LGBTQ community.
The rule could also lead to many LGBTQ patients not fully disclosing their identity and medical history for fear of discrimination, resulting in improper or incomplete care. While marginalized communities are the intended target, the rule is so broad that the religious objections of a health care worker could result in anyone – the elderly, children, and those in critical condition – being denied lifesaving medical care.
From The Plaintiffs:
"Hartford GYN Center has been an established community resource for families in New England for over 40 years," said Elizabeth Barnes, President of The Women's Centers. "We pride ourselves on providing reproductive health care--including first and second trimester abortion--that is patient-centered. Our staff are experts in the field and we are routinely referred to by area specialists, hospitals and universities. If we were to deny care or medical referrals, we would no longer serve the needs of the community who have come to depend on Hartford GYN Center thanks to our reputation based in non-judgmental and science-based care. The HHS Denial of Care rule would deliberately drive reputable health care providers away from Connecticut and would not serve patients' best interests."
"We at Whitman-Walker Health stand for dignity, affirmation and respect in healthcare," said Naseema Shafi, CEO, Whitman-Walker Health. "We stand for providing the right level of care for our patients, as directed by the needs that they report to us. We stand for the evidence-based and ethically driven guidelines that are the foundation of our work. The language within the U.S. Department of Health and Human Services ‘Denial-of-Care' rule has left us with only one clear option, and that was to advocate for access to health care. This is not a new position for Whitman-Walker. This is, in fact, the kind of discrimination that led to our founding."
"This so-called ‘conscience rights' rule is nothing but a thinly veiled attempt to codify discrimination against LGBT people, among others. It eliminates critical health care protections and puts millions of lives at risk. Moreover, it is a clear violation of civil rights laws, medical ethics, and basic human values," said Los Angeles LGBT Center CEO Lorri L. Jean. "Time and again we have stood in opposition as this Administration has levied blow after blow against the LGBT community. Now, we are taking the fight to them."
"Medical Students for Choice is challenging the Denial of Care Rule because this rule will negatively impact our members' ability to receive the education they will need to adequately care for their patients, greatly harming the quality of care everyone will receive from all future doctors nationwide," said Lois Backus, executive director of Medical Students for Choice.
"Like all Americans, LGBT people deserve high-quality health care. Unfortunately, the LGBT community experiences challenges when it comes to accessing high-quality health care, leading to significant health disparities and worsened health outcomes," said Adrian Shanker, Executive Director, Bradbury-Sullivan LGBT Community Center in Allentown, PA. "These health challenges will be exacerbated due to the HHS Denial-of-Care Rule. This is especially true in small, under-served cities and rural communities like the Lehigh Valley in Pennsylvania where we are located. That's why Bradbury-Sullivan LGBT Community Center is suing the Trump administration. We cannot stand by and allow such an ill-considered rule to go into effect while the health of our community suffers."
"The Denial of Care rule strikes at the very core of GLMA's mission by encouraging discrimination in healthcare against LGBTQ people, people living with HIV and women, all of whom already face frequent and pervasive discrimination when seeking healthcare," said Hector Vargas, Executive Director, GLMA: Health Professionals Advancing LGBTQ Equality. "The Denial of Care rule also stands in direct conflict with the Joint Commission and the major medical and health professional associations representing physicians, nurses, nurse practitioners, physician assistants, psychologists, social workers and other healthcare providers that have adopted standards to ensure all patients, including LGBTQ patients, are treated with respect and without bias and discrimination. The rule endangers the lives of LGBTQ people by putting their health at risk and must be invalidated immediately."
"Center on Halsted is committed to the right to bodily autonomy, whether for a transgender individual seeking healthcare or a person seeking reproductive healthcare," said Center on Halsted CEO Modesto Valle. "We have fought long and hard for the rights of LGBTQ people to live free from harm, particularly when the systems that should be providing safety nets fail us. This is one of those times. This Denial-of-Care Rule is the latest in attacks on the LGBTQ community by the current administration. Center on Halsted will do everything we can to ensure the health and well-being of our community. Our community deserves better from our government institutions."