Last Tuesday, a coalition of advocacy organizations and health care providers filed suit to overturn the Trump administration’s most sweeping effort to advance the religious right’s discriminatory agenda. This was a Health and Human Services rule announced on May 2 that would vastly expand the “right” of individuals and entities to refuse to provide a service based on religious grounds.
That rule threatens to cut off federal funding to force compliance with its profoundly unworkable requirements. “As a result, health care facilities may do away with reproductive and LGBTQ services altogether, leaving millions without access to critical health care,” the plaintiffs explained in a press release. Dubbed the "denial of care" rule in the lawsuit, it’s not only a perversion of true religious freedom, the suit argues, but a violation of several different constitutional principles, as well as the Administrative Procedures Act, whose requirements were flagrantly ignored.
To be clear, this has nothing to do with the genuine freedom to adhere to one's religious beliefs. There have long been provisions for health care providers to abstain from practices for religious reasons, in carefully balanced ways that preserve patient access to care and maintain patient health as the central focus of medicine. But the "denial of care" rule turns all this upside down, placing an imaginary right to discriminate at the center, and requiring everything else to accommodate them. As with the wave of new anti-abortion laws, discriminatory loss of access is precisely the point. It's a feature, not a bug.
“Discrimination is always wrong, but in this case, it can be deadly,” said Richard Katskee, legal director of Americans United for Separation of Church and State. “Religious freedom is incredibly important. It's right to believe and worship as you see fit. But it's never an excuse to discriminate. It's never an excuse to harm others. Yet that's exactly what the denial of care rule does. It can't be allowed to stand.”
The suit was filed by Americans United, the Center for Reproductive Rights, Lambda Legal, and Santa Clara County, California (which includes San Jose and much of Silicon Valley), in U.S. District Court for the Northern District of California. It follows three earlier lawsuits filed by city and state governments — starting with the city of San Francisco and followed by both California and New York state — but brings new arguments to the table.
“Private clinics can make some sorts of legal claims including the constitutional claims that government agencies are not suited for,” Katskee said. They not only bring claims on their own behalf, but “also on behalf of their patients and recipients of services, who face barriers to asserting their own claims and protecting their own interests,” according to the suit.
Plaintiffs in the suit include five private facilities which provide reproductive health services and health care services for LGBT individuals, four individual physicians and a licensed counselor employed by these facilities, two LGBT community service organizations, and three national associations of medical professionals.
“Our organizations are jointly representing millions of health care providers and community centers that are dedicated to serving the LGBT community, abortion providers, individual doctors and three national associations of healthcare professions and medical students,” said Jamie Gliksberg, senior attorney at Lambda Legal. “These health care providers and community centers are really providers of last resort for their patients. If these organizations are forced to cut back on their services or even close their doors as a result of this rule, the implications for LGBT people and for people living with HIV are incalculable. They literally save lives.”
While the main impact of the rule reflects the religious right’s theocratic direction that has come to the fore since the 2009 Manhattan Declaration, the manner of implementation reflects the Trump administration's authoritarian instincts. This includes the lack of a fair and lawful process in drafting the rule (as first seen in Trump’s "Muslim ban"), the violation of separation of powers in usurping Congress’ power of the purse (as in Trump's attempts to build his border wall), the weaponization of chaos and confusion, and the shift from an incremental erosion of rights to a massive frontal assault.
Most dramatically, the rule’s scope goes far beyond anything previously contemplated, as explained by Genevieve Scott, senior staff attorney at the Center for Reproductive Rights.
“This rule invites almost any health care worker to deny medical treatment to patients based on their personal religious or moral beliefs," Scott said. "It extends not only to doctors and nurses — even EMTs and administrative staff are encouraged to deny care.
“The rule is intentionally confusing and unworkable for health care facilities to implement,” she continued. “To avoid potentially violating the rule and losing their funding, many facilities may end up doing away with services that staff might object to, including reproductive health care services like abortion and contraception, and LGBT services.” Beyond that, Scott added, “Other facilities may be forced to close. Millions of people could lose access to this incredibly critical health care.”
Santa Clara County runs the second largest public health system in California (after Los Angeles County), and is lead plaintiff in the case. County counsel James Williams painted a more precise picture of on-the-ground concerns about the rule. “Not only does it extend conscience exemptions beyond employees directly providing care to encompass even janitors and administrators, it also dramatically expands what a person can object to doing, far beyond providing actual care,” Williams said. “Under this rule, staff could refuse to even tell a patient what services are available at what facility, or about alternative treatment options if staff objected to those services or treatments.”
There is already a system in place for balancing personal beliefs and medical needs, Williams said, which involves advance notice and important exceptions for emergencies. But under the new rule, he continued, an objector's “refusal to assist in patient care during an emergency could lead to delays in care and worse medical outcomes, including fatalities,” he warned. The fact that any employee could object — possibly without anyone even noticing, as in the potential case of a receptionist or administrator withholding information — would inevitably compromise access to care.
“The rule privileges particular religious views over all other medical, legal and operational concerns,” Williams said. “This really is a public health risk. That's why the county is gotten involved in this case. In our view compliance with the denial of care rule is operationally unworkable, endangers patient health and creates insurmountable staffing challenges.”
The consequences are even more severe for providers serving specific targets of right-wing animus.
“This rule erodes trust between patients and their providers, will result in denial of medically necessary care, and will have a chilling impact on LGBT patients, encouraging them to remain in the closet when seeking medical care, for fear of encountering discrimination,” said Gliksberg. “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.”
Julie Burkhart is the CEO of Trust Women, which operates abortion clinics in underserved areas. “Patients at Trust Women Seattle have conveyed that they have been disrespected and demeaned by other health care providers for making independent decisions about their health care, including past and present reproductive health care choices,” she said. “Our clients often come from stigmatized populations, who find it challenging to obtain compassionate health care."
This new rule would affect Trust Women and its patients in a variety of ways, Burkhart said:
One, we might find it challenging to keep our doors open if we were to lose government funding for our patients who are on state insurance. Second, we might have to alter our mission and vision of the organization. Third and most important, our patients would suffer as they might not be able to find the same quality care that we know we provide, if people are allowed to work within the organization to have a moral objection to the type of health care that we deliver.
Katskee said that the proposed rule is unconstitutional in at least four ways, as explained in the complaint filed last Tuesday:
It violates the establishment clause of the First Amendment, by advancing the religious beliefs of employees at health care facilities at the expense of patients. It violates patients’ rights of privacy, liberty and equal dignity, which are guaranteed by the Fifth Amendment. It violates patients' free speech rights because it interferes with their ability to be open and honest with their doctors, which is going to prevent them from getting the care and information that they need. It violates the Equal Protection Clause by targeting and disproportionately harming marginalized communities, most obviously women and LGBT people.
There are statutory problems as well, Katskee added:
The rule is arbitrary and capricious, violating the federal Administrative Procedure Act because it fails to take account of the harms to patients and the administrative nightmares for hospitals and clinics, even though these were all reported to the department of Health and Human Services during the public comment period on the proposed rule. Finally, Congress did not authorize HHS to do this. In fact, the rule violates a number of federal laws that protect patients’ rights to care, to access information, and to nondiscriminatory treatment.
The rule is yet another example of Trump’s repeated attempts to usurp congressional power — most dramatically in his attempts to steal money designated for other purposes to pay for his wall. The ninth count of the suit asserts a separation of powers violation. “The Constitution vests the Spending Power in Congress, not in the Executive Branch,” it says. “The Executive Branch cannot amend or cancel appropriations that Congress has duly enacted. ... The Rule imposes requirements not authorized by the underlying federal statutes and would allow defendants to withhold, deny, suspend, or terminate federal financial assistance for noncompliance with those requirements.” Therefore, “The Rule’s conditions improperly usurp Congress’s spending power and amount to an unconstitutional refusal to spend money appropriated by Congress, in violation of constitutional separation-of-powers principles.”
This rule must also be seen in a broader context, in which Trump’s power grab is symptomatic of a more far-reaching anti-democratic movement, which Trump certainly builds upon, but did not invent.
“This rule is part and parcel of a grand misuse of the concept of religious freedom,” Katskee warned. “Religious liberty is the right to believe or not, to worship or not as you see fit. But when it is distorted into being a weapon, a way to discriminate and harm other people to make them bear the cost and burdens of your religious exercise, that goes way beyond what is constitutionally permissible. Yet that is exactly what the government has licensed here. This is the next huge effort by the federal government, by the Trump administration, to advance that misuse of religious freedom.”
There’s an even deeper threat here, according to Frederick Clarkson, author of "Eternal Hostility: The Struggle Between Theocracy and Democracy," and a senior research analyst at Political Research Associates. “The rule is a sweeping attack not only on the civil rights, health and even the lives of people seeking health care, but an attack on religious freedom itself,” Clarkson warned.
“The Christian right, since the signing of the Manhattan Declaration in 2009, has sought to turn what may be the most liberatory idea in the history of humankind into a tool of insult and repression of the religious views and civil rights of others. The idea that one can use religious freedom as an excuse to choose what laws one will follow is an affront to the very idea of a civil society in which the laws apply fairly and equally to all,” Clarkson said. “If one can refuse to provide health care to people based on vague notions of religious and moral objection, this places health and medical decisions not in the hands of medical providers, but in the hand of sectarian religious leaders and vigilante moralists risking the lives and the religious freedom of any of us, or people we love, who may end up in their care.”
These specific attacks may be new, but the underlying arguments are not, Clarkson noted. “If the kind of reasoning behind such religious exemptions prevalent on the Christian right and in the Trump administration today had prevailed in the 1950s, lunch counters in the South would still be segregated (along with everything else) and interracial marriages would not only still be illegal in Virginia, but not recognized by those to whom they are deemed religiously incompatible or morally deficient,” he said. “And it would all be legal.”