June 12, 2019 – Americans United for Separation of Church and State, Lambda Legal, the Center for Reproductive Rights and Santa Clara County late yesterday urged the U.S. District Court for the Northern District of California to block implementation of the Denial of Care Rule to protect patients nationwide while the coalition’s lawsuit challenging the rule is pending.
In the lawsuit, County of Santa Clara v. HHS, filed May 28, the civil rights organizations represent a wide array of health providers including Trust Women Seattle, Hartford GYN, Whitman-Walker Health, Bradbury-Sullivan LGBT Community Center, Los Angeles LGBT Center, Center on Halsted and Mazzoni Center, plus GLMA, AGLP, Medical Students for Choice and five doctors. The county itself runs an extensive health and hospital system that serves as a safety-net provider for its 1.9 million residents. Mayer Brown LLP is serving as pro bono counsel.
“People’s lives are at risk if the Trump administration’s Denial of Care Rule is allowed to go into effect,” said Richard B. Katskee, legal director for Americans United for Separation of Church and State. “This rule is so unconstitutional and unconscionable that it cannot be allowed to take effect. We urge the court to block it.”
“The rule is so overbroad, unworkable, and sweeping in its targeting of LGBT people and women for denials of health care that it will harm patients,” Lambda Legal Senior Attorney Jamie Gliksberg said. “Our providers mean the difference between life and death for the marginalized communities they serve. Their patients come to them sometimes in crisis, and sometimes after having been denied care by other providers. If the rule goes into effect, these providers and the patients they serve will be irreparably harmed. Without exaggeration, the rule will hurt people, and likely kill some of them.”
“Once again, the Trump administration is callously targeting reproductive rights and restricting access to health care,” Center for Reproductive Rights Senior Staff Attorney Genevieve Scott said. “The rule is a weapon to drive abortion, contraception, and LGBTQ health care out of reach for all individuals across the country. This new policy leaves zero safeguards for patients and is a glaringly unconstitutional attack on patients’ rights to access health care. We are standing up to the Trump administration for skirting Congressional approval and pushing through this extreme and discriminatory policy that puts patient lives at risk.”
“The Denial-of-Care rule is not the result of carelessness. It was designed to invite discrimination and intimidate providers into dropping services the Trump administration disagrees with,” said Santa Clara County Counsel James R. Williams. “In issuing this patently unlawful rule, HHS has neglected both its statutory obligations and its basic responsibilities to patients. The rule is operationally unworkable and will cause irreparable harm to patients and healthcare nationwide.”
The new regulation, issued last month by the U.S. Department of Health and Human Services, invites anyone employed by a health care provider – doctors, nurses, EMTs, administrators, janitors and clerical staff – to deny medical treatment and services to patients because of personal religious or moral beliefs. Health care facilities that do not comply risk losing federal funding. The regulation will cause mass confusion among health care providers and is completely infeasible to implement. As a result, some health care facilities – most of which receive federal funding through HHS – may do away with reproductive and LGBTQ services altogether, leaving millions without access to critical health care.
In the lawsuit, the civil rights organizations argue that the rule is unconstitutional because it advances specific religious beliefs in violation of the First Amendment; violates patients’ rights to privacy, liberty and equal dignity as guaranteed by the Fifth Amendment; and chills patients’ speech and expression in violation of the First Amendment, all to the detriment of patients’ health and well-being. The lawsuit also asserts that HHS violated the federal Administrative Procedure Act in creating the rule by arbitrarily and capriciously failing to consider the impact on patients and the health care system.
The rule could also lead to many LGBTQ patients not fully disclosing their identity and medical history for fear of discrimination, resulting in improper or incomplete care. While marginalized communities are the intended target, the rule is so broad that the religious objections of a health care worker could result in anyone – the elderly, children, and those in critical condition – being denied lifesaving medical care.