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ACLU Sues Trump Administration for Totally Distorting the Concept of ‘Discrimination’


The ACLU and several other advocacy groups filed a lawsuit against the Trump Administration on Tuesday over a new policy that allows healthcare workers to deny patients information and treatment based on personal religious or moral beliefs.

The underlying issues in play draw on the ongoing national debate over whether “religious freedom” allows a person to avoid what would otherwise be a legal obligation on the basis that following the law would offend their religious beliefs.

In a statement on its website, the ACLU stated that it took up this fight because Trump’s new rule is seriously dangerous in that, “It forces health centers that receive federal funds to employ individuals who refuse to perform essential job functions, without any regard for the wellbeing of their patients or public safety.”  The rule, officially titled “Protecting Statutory Conscience Rights in Health Care,” was first announced by President Donald Trump in a Rose Garden press conference last May, on the National Day of Prayer. It is set to take effect July 22.

The change was part of an administration-wide effort to expand the Civil Rights Act to focus on “conscience and religious freedom,” or in other words, allow religious conservatives working in healthcare to refuse to get involved when they disagree with the choices of their patients.

Even before the new rule was adopted, several separate provisions in federal law already specifically protect healthcare providers’ right to limit their services on conscience grounds. The change, however, broadens those rights significantly.

The ACLU’s lawsuit outlines the many existing protections that allow healthcare professionals to refuse patient care in appropriate instances. Those statutory protections, primarily adopted during the George W. Bush administration, are collectively known as the “federal refusal statutes,” and have already had contentious history.  Those rules were later amended, and according to the complaint, there were “less than fifty allegations of discrimination against healthcare providers in the decade between 2008 and 2018. Of those that were filed, the large majority of which were filed since the November 2016 election.”

Historically, healthcare providers haven’t raised significant discrimination claims. By contrast, though, patients have. According to the complaint, and, “To place that figure into context, [the Office of Civil Rights] in total received over 30,000 complaints of discrimination against patients in fiscal year 2017 alone.”

In the complaint, plaintiffs discuss the new definition of “discrimination” as promulgated by the Trump Administration; it is a dentition that abandons any balancing of religious objection with patient safety in favor of “impos[ing] a virtually absolute obligation to accommodate employee objections, regardless of impact, giving employees carte blanche to refuse to do core aspects of their job and yet stay in their role.”

While the administration’s new rule was primarily influenced by anti-abortion advocates seeking to establish heightened protection for healthcare professions who refuse to paritipate in abortions, its opponents argue that its effects will be far broader. Now, those who refuse to provide contraceptive care or sterilizations–or those who refuse to participate in gender-reassignment surgeries and other specific LGBTQ-care–can simply opt out.

Furthermore, the plaintiff groups argue that the rule’s language is so broad as to allow a person to refuse to even handle administrative duties for some patients, such as appointment-scheduling, hospital admissions, medical records processing, or medical transport – even during an emergency. Worse still, the professionals would no longer be obligated to provide patients with information, which would have lasting consequences for the entire concept of informed consent.

In their complaint, plaintiffs draw on some specific cases of patients denied care on the basis of religious objection:

For example, to justify the Rule, HHS cited the case of Tamesha Means, who sought legal redress when she was turned away from a hospital three times in the midst of a miscarriage of a non-viable fetus, developing a life-threatening infection as a result, because the hospital’s religious policies prohibited providing her the emergency abortion care she needed.

HHS also cited the case of Rebecca Chamorro, who is seeking legal redress for being forced to undergo the additional stress, health risks, and cost of two surgical procedures, rather than a single one, because a hospital prohibited her willing doctor from performing a standard postpartum tubal ligation because it was considered sterilization.

In addition, HHS cited the case of Evan Minton, who is seeking legal redress because his scheduled hysterectomy was canceled on the eve of that procedure, despite his doctor’s willingness to proceed with that routine operation, because the hospital became aware he was transgender.

Those stories, the plaintiffs argue, aren’t merely collateral damage, but are the central purpose of the rule itself:

Tellingly, HHS cited each of these cases not because it was concerned with the physical, emotional, and dignitary harms these patients suffered when they were illegally prevented from obtaining the care they needed, but because HHS wants the Rule to be used to create more Tamesha Means, Rebecca Chamorros, and Evan Mintons.

The lawsuit filed Tuesday is one of several lawsuits filed in opposition to the administration’s new rule. A coalition of states, counties, and municipalities led by New York State Attorney General Letitia James (D), as well as one by the city San Fransisco, are already proceeding.

[image via Nicholas Kamm/AFP/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos