Public Health Law Watch, joined by our friends at the Public Health Law Center, submitted official comments to the U.S. Department of Health and Human Services proposed amendments to 45 CFR 88, "Protecting Statutory Conscience Rights; Delegations of Authority." Based on our combined expertise in public health law and policy, we offered comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.
U.S. Department of Health and Human Services
Office for Civil Rights
RIN 0945-ZA03Docket
HHS-OCR-2018-0002
Public Health Law Watch (PHLW) and the Public Health Law Center appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 88, “Protecting Statutory Conscience Rights; Delegations of Authority.” PHLW is a project of the George Consortium, a nationwide network of public health law scholars, experts, and practitioners. The Public Health Law Center is nonprofit affiliate of the Mitchell Hamline School of Law, and a leading center of expertise in the use of law to prevent chronic disease. The Center’s team of lawyers, law students, policy analysts and graduate students helps health leaders nationwide create communities where everyone can be healthy, with a focus on promoting healthy eating, encouraging physical activity, reducing the use of tobacco products, supporting health equity, and addressing cross-cutting legal issues that affect the nation’s health. Based on our combined expertise in public health law and policy, we offer the following comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.
First, we question the need for these regulatory revisions. As laid out in the Supplementary Information accompanying the proposed regulations, federal law already contains a plethora of provisions that protect individuals who invoke a religious objection to providing certain types of care, including abortion and assisted suicide. Yet, that information contained scant evidence that a pervasive discriminatory environment towards individuals and institutions who invoke these protections actually exists. Rather, while the evidence provided describes an uptick in “conscience” complaints since the election of President Trump in late 2016, a total of only 44 complaints have been made since 2008. That represents less than 0.2% of the estimated 25,000 complaints that the HHS Office of Civil Rights (OCR) receives every year. Most of the remaining claimed support in the accompanying information is based solely on anecdotal commentary rather quantifiable data. Expanding these existing protections also risks directly conflicting with numerous professional standards, including the American Medical Association acknowledgement that conscience protections are not unlimited and that physicians “are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient.” The current version of 45 CFR Part 88 is fully adequate to properly address existing and potential complaints about conscience protection violations. HHS can also fully institute its stated goals of ensuring “knowledge, compliance, and enforcement” of existing conscience protections via administrative means that do not require revising and expanding the current regulations.
Second, we are concerned that the regulations contain no protections for patients who face denial of care when health care providers and entities invoke these “conscience protections.” By leaving patient consideration out, these regulations not only devalue those patients as individuals, but also potentially put their lives at risk. We have no way to know exactly how many times such “conscience protections” have been invoked or the extent of harm caused, but we do know that providers have, for example, refused to inseminate a woman because of her sexual orientation, refused to help a profusely bleeding pregnant woman because the fetus would not survive the procedure necessary to save her life, and refused to transport a pregnant woman by ambulance to a clinic that provided abortions. As the American Academy of Family Physicians has emphasized, “There is a distinct difference between declining to participate in a procedure versus denying access to care to an individual patient. The former is a protected right, the latter is an unacceptable shirking of our basic responsibility to care for our patients and contrary to the key underpinnings of the Code of Medical Ethics.” Even if OCR prioritizes “conscience protections” of the health care providers and entities, the regulations also need to adequately protect the health and lives of the patients affected when such conscience protections are invoked. Further, the regulations are focused solely on health care providers and entities that refuse to provide certain types of care, yet fail to protect health care workers who view providing services like abortion as moral imperatives and yet face constant barriers and little consideration for their views.
Third, though the regulations are intended to enforce the “conscience protection” provisions in federal law, several of the proposed definitions in section 88.2 are so wide as to significantly expand existing law. We are particularly alarmed about the broad proposed definition of the term “referral or refer for.” While some of the existing provisions include a right for health care workers not to provide a “referral” for a service they have a religious or moral objection to, this definition of referral includes “the provision of any information…by any method… that could provide any assistance in a person obtaining….a particular health care service, activity, or procedure[.]” (emphasis added). This expansive definition conceivably allows a health care provider to not only refuse to provide a direct referral for care, but also to present the health care services he or she is willing to perform as the only medical options available to the patient. This could deprive a patient of the ability to make a decision with informed consent and leave them unaware that they can seek alternative and appropriate care from another provider. Again, these regulations provide no recourse to a patient harmed by this situation; rather, the regulations consider only the provider.
Compounding the concern about the broad definition of “refer,” the terms “workforce” and “assist” also have definitions that include activities, omissions, and persons far beyond the scope of those already protected under federal law. “Workforce” includes not only health care entity employees and contractors but also includes unpaid volunteers. “Assist in the performance” means “to participate in any program or activity with an articulable connection to a…” procedure, activity, or program. This explicitly includes, but is not limited to, “counseling, referral, training, and other arrangements….” These exceptionally broad definitions expand the scope of those who can invoke “conscience protections” beyond those originally envisioned in many of the federal provisions at issue. By allowing such a broad population of individuals to invoke “conscience protections” in such a wide range of situations, the care of patients is further diminished. This particularly puts at risk the health of patients in areas with few existing resources; low-income U.S. residents are already more likely to live in areas with fewer physicians and fewer hospitals and to have significantly poorer health overall. Residents in rural and farm communities also face similar barriers to access and health disparities. The regulations should ensure adherence to the federal laws so that they apply narrowly and therefore minimize the impact on patient care.
Fourth, we are deeply concerned that these regulations particularly imperil care of the LGBTQ population. Health care already has a long history of anti-LGBTQ discrimination, such as classification of homosexuality as a psychiatric disorder and “treatment” that included electroshocks and “conversion” therapy. Partially as a result of this harm, LGBTQ populations have numerous health disparities, including higher rates of HIV, suicidal ideation and attempts, and violence victimization. They face frequent discrimination in health care contexts and these regulations would only enhance that discrimination by allowing a health care worker to raise a “moral objection” to, for example, homosexuality in general or to same-sex marriage. The objection could conceivably even be invoked to refuse treatment to children who have same-sex parents. Within the LGBTQ community, the transgender population is particularly at risk under these regulations. Absolutely no evidence exists that health care providers are being forced, for example, “to perform gender-affirming surgeries against their will…but what is happening every day, is transgender patients are being denied every kind of medical care you can think of.” A full 22% of transgender people in America already avoid doctors and medical care due to fear of discrimination and 31% have no access to regular health care at all. Those numbers are already alarming in the context of public health; these regulations risk leading to even wider denial of care, which would only increase that crisis.
Finally, the health care services explicitly targeted most often by these regulations (and by existing federal law) are those involving reproduction. In fact, the regulations often seem to be directly intended to “undermine existing legal and ethical protections for patients’ access to sexual and reproductive health information and services, and other critical care.” Many of the existing federal provisions explicitly allow providers and entities to invoke conscience protections in relation to directly providing abortions. But conscience protections have also been invoked to refuse access to emergency contraception for rape victims and to refuse to perform medically necessary procedures to save a woman’s life. The United States already has the worst rate of maternal deaths in the developed world, and this issue is further compounded by significant disparities: black mothers die at a rate 3-4 times more often than white mothers. To allow health care providers to invoke conscience protections to lifesaving reproductive health care even as a woman dies will escalate already unacceptably high rates. Further, these regulations also target – according to the supplementary information provided - laws requiring insurance coverage of reproductive health services, public notice requirements for “crisis pregnancy centers,” and attempts to require hospitals and healthcare professionals to provide abortion care when a woman’s life is endangered. These provisions go well beyond what the federal law currently covers, dangerously encroaching not only on a constitutionally protected right to reproductive health care but also on the very lives of women as patients.
While protecting religious convictions has indeed been a long-respected – though never unlimited - right in the United States, HHS’s proposed regulations prioritize expansion provider protections without adequate consideration for how they endanger the health and lives of already vulnerable patient populations. We urge HHS not to adopt these proposed regulations.
Sincerely,
PHLW and PHLC
Public Health Law Watch
A project of the George Consortium
Public Health Law Center