How the Trump ‘Medical Conscience’ Rule is Harming LGBTQ Liberty

By |2020-01-07T16:22:36-05:00January 7th, 2020|Opinions, Viewpoints|

In November a federal district judge in New York found that the Trump Administration lied. The Court also held that the Administration had overstepped its authority. Let me explain. In May 2019 the Administration issued its “Medical Conscience” rule. We’ve had medical conscience rules in the past that have protected health care employees who refuse to participate in performing abortions, sterilizations and assisted suicides, based on their sincerely held religious beliefs. Our federal civil rights laws require employers to “reasonably accommodate” their worker’s religious practices or beliefs, so long as that accommodation does not cause an undue hardship, or what the Supreme Court has interpreted to mean, more than a minimal expense.
However, the Trump “Medical Conscience” rule goes much further. It includes any and all medical practices and procedures, including emergency medical care. It goes beyond employees who are directly performing a medical procedure or surgery. This means a receptionist could refuse to schedule a patient for a procedure that they have a religious or moral objection to. This means that paramedics who have religious and moral objections could refuse to transport LGBTQ patients to the hospital.
The Trump “Medical Conscience” rule also expands what constitutes religious discrimination and mandates certain procedures that employers have to follow in order to continue receiving federal funding. Employers (including states) that fail to comply with the rule could lose substantial amounts of federal funding appropriated by Congress.
In order to justify the need for this rule, the Trump Administration claimed that there had been a substantial increase in complaints by health care employees being forced to perform objectionable procedures and were being disciplined for failure to do so. This was proven to be untrue during the court proceedings and United States District Judge Paul Engelmayer essentially stated that the Administration had lied. The Court also found that the Administration attempted to take away the authority of Congress to decide how religious beliefs of employees are accommodated and how federal dollars are spent on health care services.
Following the New York District Court decision, two other federal courts in Washington and California also found the Trump “Medical Conscience” rule to be invalid. These are positive developments. Religious liberty, which is strongly protected in our Constitution, doesn’t include the right to be exempt from laws protecting our health or barring discrimination. Medical standards, not religious beliefs should guide medical care. Denying patients health care is not liberty. Choosing your patients based on their sexual orientation or gender identity or expression is not freedom.
The Trump “Medical Conscience” rule is just one of many policy initiatives from this administration that permit discrimination against LGBTQ people. Already, the administration has proposed new regulations for the Affordable Care Act that would remove protections against discrimination for LGBTQ people regarding health insurance coverage and accessing health care. Just in November the administration issued new guidelines that would permit programs receiving federal funding from the Department of Health and Human Services, including foster care agencies, to refuse to work with LGBTQ people.
It’s important that we are aware about what this administration is doing so that we can speak out in opposition to policies that aim to turn back the clock on LGBTQ equality. We also need to reach out to our allies to make sure that they are informed as well. And we all need to participate in next year’s elections to make sure that our voices regarding LGBTQ rights are heard loud and clear.

About the Author:

Jay Kaplan is the Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project staff attorney for the ACLU of Michigan.