Trump’s New “Treatment Refusal” Rule Puts Discrimination Ahead of Patients’ Health
When it comes to medical care, the needs and health of patients should always come first. But a new federal office and a new proposed regulation from the Trump Administration are trying to elevate the personal beliefs of providers above the command to “do no harm”—and above civil rights laws.
In 2016, Evan Minton’s doctors recommended a medically necessary hysterectomy, and scheduled the procedure with a qualified surgeon who regularly performed it. During a routine phone call with a nurse two days before the scheduled surgery, Minton mentioned he was transgender. The next day he learned the hospital had canceled his procedure for exactly that reason—while not canceling a hysterectomy the same day for a non-transgender patient.
The hospital system said it only performed hysterectomies to treat a medical condition. Minton’s procedure was needed to treat gender dysphoria, under standards endorsed by the American Medical Association. Still, the hospital would not relent. The procedure took months to reschedule with the same surgeon at another hospital, complicating Minton’s care and causing him extreme distress.
The Trump Administration [today] cited Mr. Minton’s case not as an example of the need to protect patients—but rather the supposed need to protect providers. The case is mentioned twice in the preamble to a proposed rule aimed at protecting and promoting the refusal of medical care by providers who disapprove of patients’ identities or choices. Under the proposed rule—touted as protecting “conscience rights”—hospitals, insurers, or individual health care workers can pick and choose who receives care based not on medical science or medical need but rather on their own personal beliefs. The rule—which goes far beyond established law—is virtually certain to encourage discrimination against LGBT patients and other minority groups.
The nation’s major medical associations strongly oppose discrimination against patients based on their identities, whether in the name of religion or “conscience” or anything else. The vast majority of medical providers, and the vast majority of people of face, don’t believe in discrimination. Nevertheless, discrimination against LGBT people in medical care remains all too common—and well-documented. In a national survey of over 27,000 transgender Americans in all 50 states, 33 percent of those who had sought health care in the prior year reported being refused care or mistreated because they were transgender. And nearly one-quarter of all respondents said they had avoided health care when they needed it in the last year out of fear of discrimination.
Numerous surveys and reports from sources such as the National Academy of Medicine, document discrimination’s harmful effects on patients’ lives and health. Organizations such as the National Center for Transgender Equality regularly hear from patients, and their families, who have been turned away by providers who don’t want to treat (or sometimes even touch) an LGBT person. We’ve heard from people who were refused routine screenings, necessary medications, and urgent care. We’ve also heard from people who drive 50 or 100 miles or more for routine care because doctors in their small town refused to treat them. In one ongoing case in California, a transgender teen’s mother and therapist had him released early from an emergency psychiatric hospitalization. The reason? They feared he was being harmed rather than helped because hospital staff constantly harassed him based on their belief he was “really” a girl.
We all cherish the freedom of religion, which is rightly enshrined in our Constitution and numerous laws. But allowing the refusal of medical care because someone disapproves of a patient’s identity is a perversion of that principal that goes far beyond current law. By redefining basic terms like “assist” and “refer,” for example, the rule seeks to empower health care workers not only to not participate in a procedure they object to, but to refuse to do anything (no matter how indirect) that would allow the patient to receive care from someone else.
No wonder the new rule was rushed out without ever being listed in the Department Health and Human Services’ public rulemaking agenda. Unfortunately, the Department isn’t stopping there, but included pages of requests for public comments on how it could expand the rule to promote even more refusals of care. If this rule is finalized in its current or an even more sweeping form, legal challenges are inevitable in light of the conflicts with federal, state, and local civil rights laws and other patient protections. Yet it’s in keeping with the Trump administration’s efforts in many spheres to promote discrimination and undermine basic civil rights.
We all need health care, and none of us should be turned away because someone disapproves of who we are or how we live our lives. Period.