The potential irony of a new health care non-discrimination rule

Washington D.C., Nov 11, 2015 / 16:00 pm

Proposed federal anti-discrimination rules could threaten the religious liberty of health care providers and also infringe on the privacy of patients, lawyers for the U.S. Catholic Bishops have warned.

"Everyone should have access to health care and health coverage," stated the general counsel and associate general counsel for the U.S. Conference of Catholic Bishops, Anthony Picarello and Michael Moses, respectively, in comments submitted to the Department of Health and Human Services over the proposed rule "Nondiscrimination in Health Programs and Activities."

However, they cautioned, the rule expands the definition of sex discrimination far beyond existing law, to a point where it is "likely" to "infringe upon the religious and moral convictions of health care providers, insurers, and other stakeholders."

The proposed rule, introduced in September by the Department of Health and Human Services, is a set of regulations that implement and clarify an existing provision of the Affordable Care Act.

The original provision, Section 1557 of the law, took existing anti-discrimination protections in civil rights laws and expanded them to include a prohibition of any discrimination in health care access on basis of sex.

The rule applies to any health care program or activity that receives federal funding, like hospitals that accept Medicaid patients. And it covers all health care practices of such entities, not just specific areas where federal funds are involved.

Lawyers for the U.S. Catholic Bishops Conference voiced several deep concerns with the regulations. They were joined by representatives of other religious organizations like the National Association of Evangelicals, the National Catholic Bioethics Center, and the Ethics & Religious Liberty Commission of the Southern Baptist Convention.

In a letter to the HHS Office of Civil Rights, they argued that where the proposed regulations prohibit "discrimination on the basis of termination of pregnancy," this could be interpreted "incorrectly" as an abortion access mandate for health care providers and insurers.

"To prevent such a misreading, it is important that OCR [HHS Office for Civil Rights] state explicitly in the regulations that neither Section 1557 nor the regulations impose such a requirement," their letter stated.

Mandatory access to abortion is not found in the Affordable Care Act, which instead left the decision of covering abortions up to the insurers themselves, the letter argued. Such a mandate would also be prohibited under existing law – the Weldon Amendment – they said.

By expanding the definition of sex discrimination in health care, the regulations present other problems, the letter argued. For instance, requiring "equal access" to health care for persons of any "gender identity" – defined in the regulations as the gender someone internally identifies with and not the gender they were born as – could affect the privacy of patients and the "effective delivery" of health care.

"For example, the residents of a health care facility such as a nursing home have a privacy interest in not being required to share a bedroom with a member of the opposite sex to whom they are not married," the letter stated.

Or in another example they gave, "a psychologist providing group therapy to female rape victims should not be required to admit as a patient into those group therapy sessions an individual who is male but 'identifies' as female. Otherwise therapeutic outcomes that are achieved by limiting such sessions to biological women would be compromised."

Another concern the letter's authors presented is that the regulations mandate health care providers and insurers to cover services for "gender transition." Such providers might include "a religiously-affiliated hospital or nursing home that participates in Medicaid," and one that religiously objects to providing for such services.

Also, the regulations do not include an exemption for religious organizations who object to providing certain medical services or coverage under the rule, they added.

There is a legal basis for this, they explained. The health care law's original anti-discrimination provision was written on the "grounds" of Title IX of the Civil Rights Act. Title IX prohibits discrimination in a number of areas including race and sex, but it includes an exemption for religiously-affiliated educational institutions in cases of sex discrimination.

So where a religiously-affiliated organization would not accommodate an individual's request on basis of sex because the request "would not be consistent with [their] religious tenets," they would qualify for an exemption under Title IX. Thus, the regulations must include at the very least a similar exemption for a religious organization.

"The [current] regulations proposed by OCR will substantially burden religious exercise," the letter stated. "The burden is not justified by a compelling interest, and any legitimate government interest, if there is one, can be furthered by less restrictive alternatives."

The HHS did float the possibility of a religious exemption to the rules, and asked for comments. The agency stated that the rule does not change existing religious protections like health care conscience laws, the Religious Freedom Restoration Act, and "provisions in the Affordable Care Act related to abortion services, or regulations issued under the Affordable Care Act with regard to preventive health services."

The proposed rule comes just days after the Supreme Court agreed to hear multiple challenges to the health care law's contraception mandate that requires employers to provide coverage for contraceptives, sterilizations, and drugs that can cause early abortions.

Although the administration amended the rule for religiously-affiliated organizations that object to complying with the mandate, groups like the Little Sisters of the Poor argue that the revised rule still forced them to violate their consciences.

Under the new rules, they must notify the government of their objection, who will direct their insurer to provide the mandated coverage. Critics of the mandate argued that the cost for the objectionable drugs and procedures is still passed on to the religious groups that wanted to opt out of providing for them altogether.