A proposed rule from the Biden Department of Health and Human Services (HHS) seeks to remove healthcare providers’ right to determine what is “clinically appropriate” treatment if it runs afoul of a new, expansive definition of “discrimination on the basis of sex.”
In late July, HHS proposed a rule reinterpreting Section 1557 of the Affordable Care Act (ACA). Section 1557 is the portion of the ACA prohibiting discrimination on the basis of race, color, national origin, sex, age, or disability by health programs and activities funded or administered by HHS. Under the new rule, “sex” would be redefined to include sexual orientation and gender identity, as well as pregnancy or related conditions, such as “pregnancy termination,” with critical implications for rights of conscience in healthcare.
In 2020, the Trump administration narrowed the scope of Section 1557 to cover only specific, federally-funded activities (not all operations) of health insurers, and did not apply the rules comprehensively to all HHS-administered programs. The past administration also adopted blanket abortion and religious freedom exemptions for healthcare providers, among other changes. The latest proposed rule would reinstate Section 1557 so as to cover all HHS health programs and activities. As reasons for the proposed rulemaking, the document cites (A) “The Scope of the 2020 Rule Is Not the Best Reading of the Affordable Care Act and Section 1557’s Statutory Text,” (B) “The 2020 Rule’s Preamble Does Not Reflect Recent Developments in Sex Discrimination Law,” (C) “The 2020 Rule Causes Unnecessary Confusion in Compliance,” and (D) “Proposed Changes Are Consistent With the Statute and Will Further the Intended Purpose of the Statute.”
One of the most notable features of the updated Section 1557 interpretation is the requirement that any healthcare provider receiving federal funding perform gender transition treatment, including those who deem such services clinically inappropriate. In an article published by The Daily Signal, Roger Severino, vice president for domestic policy at The Heritage Foundation and former head of the HHS Office for Civil Rights, pointed out that in Section 92.206 of the rule, HHS explicitly states that doctors who view gender transitioning treatments as harmful in all cases must provide these services nonetheless or risk losing federal funding.
The language in Section 92.206 reads as follows: “A provider’s view that no gender transition or other gender-affirming care can ever be beneficial for such individuals (or its compliance with a state or local law that reflects a similar judgment) is not a sufficient basis for a judgment that a health service is not clinically appropriate.”
Here, HHS departs from regulating healthcare to regulating the conscience itself, proposing that a healthcare provider who believes gender transitions are never “clinically appropriate”—for religious reasons or otherwise—may not adhere to that particular view or refrain from providing such services under the new Section 1557. Additionally, analysis by Vorys Sater Seymour and Pease LLP on lexology.com notes that “This sets up a situation where a plan could be forced to choose between violating state law or violating this interpretation of Section 1557.”
HHS has claimed that the new rule “refines and strengthens the process for raising conscience and religious freedom objections.” What is this new, robust mechanism for defending religious freedom, exactly? The Office for Civil Rights, which enforces Section 1557, suggests a process by which healthcare entities can express “their views that the application of a specific provision or provisions of this part to them would violate federal conscience or federal freedom laws, so that the Department may, as appropriate, make a determination that recipients are exempt from, or entitled to a modification of the application of, a provision or provisions of this part.” In other words: HHS would invite health care entities to simply express a view that their lawful conscience rights would be violated, with no exemption or even a response guaranteed.
This pledge holds little credibility with groups who have gone toe-to-toe with the agency on religious freedom issues, prompting the United States Conference of Catholic Bishops to respond, “Assurances that HHS will honor religious freedom laws offer little comfort when HHS is actively fighting court rulings that declared HHS violated religious freedom laws the last time they tried to impose such a mandate.” (The case in question is Franciscan Alliance Inc v. Becerra, 5th U.S. Circuit Court of Appeals.)
Religious healthcare providers and medical professionals want to claim protections under RFRA, not rely on the “grace of an agency that’s been threatening them nonstop for years on end,” commented Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty.
Federal law requires the agency heed comments it receives in the public commenting period. As of this writing, nearly 1,000 comments have been filed on this notice of proposed rulemaking (NPRM), and comments can be submitted until October 3, 2022. Duplicate comments may not be received by the agency.
NRB stands with its member organizations and advocacy partners in mounting a robust opposition to the Section 1557 proposed rule. Please send your organization’s comments, statements, and coalition letters to NRB’s Director of Public Policy and Communications at email@example.com.