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The Health 202: Trump administration sides with religious conservatives in key new policy

May 3, 2019 at 7:42 a.m. EDT

with Paulina Firozi

THE PROGNOSIS

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The Trump administration is making it a top priority to protect doctors, hospitals or other medical providers who object on a moral or religious basis to providing services like abortion, sterilization or assisted suicide.

In a 440-page rule issued yesterday, the Office of Civil Rights in the Department of Health and Human Services said it will use a broader array of tools to enforce more than two dozen "conscience protection" laws, some that have been on the books since the 1970s.

The move was lauded by social conservatives, who have grown to regard President Trump as a close ally for his vocal opposition to abortion rights and other issues dear to them. The president announced the new rule during a midday Rose Garden address timed with the National Day of Prayer.

“Just today we finalized new protections of conscience rights for physicians, pharmacists, nurses, teachers, students and faith-based charities,” Trump said. “They’ve been wanting to do that for a long time.”

The rule, which details how HHS will define religious discrimination and how it will investigate such complaints, is the result of a months-long effort by OCR Director Roger Severino to reshape Obama-era policies in ways that are more favorable to conservatives.

Antiabortion group Susan B. Anthony List:

Antiabortion group March for Life:

Under the rule, the administration said it will actively enforce not just three but 25 conscience protection laws, and it drew much broader perimeters around what services providers could opt out of and who is eligible for the protections.

Severino said beefed-up enforcement is necessary because the office received 343 conscience-related complaints in the last fiscal year, an influx compared with an average of 1.25 complaints each year under the Obama administration.

“The rule broadly defines, or in some cases redefines, key terms in the law such as discrimination, referrals and what it means to assist in a procedure,” my Washington Post colleagues Ariana Eunjung Cha, Sarah Pulliam Bailey and Amy Goldstein report. “It also meticulously lays out religious exemptions in detail, both in terms of the types of workers that are covered and specific situations that might arise.”

It also requires health-care entities to maintain records and report and cooperate with OCR requests. These new mechanisms, Severino said, will ensure “Congress’s protections are not just empty words on paper.”

The rule prompted a flurry of response in Washington yesterday, with Democrats and liberals charging that it would undermine care for women and transgender people. Louise Melling, deputy legal director of the American Civil Liberties Union, told me the rule is a signal “to encourage people who want to refuse to provide abortion and other health-care services.”

“I also think it will have a chilling effect on health-care providers who want to provide those services,” Melling said.

Communications adviser to California Attorney General Xavier Becerra:

The Center for American Progress's Faith and Progressive Policy Initiative:

The National Women's Law Center:

Yet in the past, members of Congress — including many Democrats — have passed multiple laws saying individuals or entities shouldn’t have to be involved in medical procedures or administer medications to which they’re morally opposed. The 25 laws HHS is proposing to enforce include:

— The Church Amendments, passed by Congress back in the 1970s. The amendments ensure hospitals can’t lose their Medicare or Medicaid funds if they refuse to provide abortions or sterilizations based on religious belief or moral conviction.

— Under the 1996 Coats-Snowe Amendment, federal, state and local governments can’t exclude physicians or medical students from public funding or deny them licensing or certifications because they refused to be trained in providing abortions.

— And the Weldon Amendment, attached to government appropriations bills since 2004, says the government can’t discriminate against providers or insurers for refusing to provide, refer for or pay for abortions.

These provisions, and others, are among the laws OCR says it can enforce more vigorously under the rule finalized yesterday.

“This rule ensures that government entities don’t bully providers out of the practice of medicine, which would result in fewer health-care options,” Severino told reporters yesterday.

The last two presidential administrations before Trump issued their own interpretation of how they would — and wouldn’t — enforce "conscience protection" laws.

George W. Bush’s administration beefed up and broadened enforcement of some of these laws in a 2008 rule, which allowed OCR to cut off federal funding to state and local government, hospitals, health plans and clinics if they didn’t accommodate doctors, nurses or pharmacists who refused to participate in care to which they had religious or moral objections.

The Bush-era rule also required health-care entities to formally detail how they were complying with federal "conscience protection" laws. And it allowed providers to conscientiously object to providing not just abortion and sterilization procedures but contraception too.

A few years later the Obama administration rewrote the rules, characterizing them as too broad. But it still retained protections for doctors and nurses refusing to perform abortions or sterilizations and left in place a process for health workers whose rights are violated to file complaints.

AHH, OOF and OUCH

AHH: The Food and Drug Administration announced it would not ban a type of breast implant that has been linked to a rare cancer, following an impassioned hearing in March during which several women demanded the agency take action.

The agency said it doesn’t believe the product “meets the legal standard for being banned at this time,” as our Post colleague Laurie McGinley reports. FDA instead said it would bolster efforts to collect and share information about risks involved with the implants.

A specific type of textured implant has been banned or restricted in some other countries due to concerns about breast implant-associated anaplastic large cell lymphoma, or BIA-ALCL. The FDA said these specific devices make up only 10 percent or fewer of the implants sold in the United States. The agency had identified 457 cases of the implant-related lymphoma as of Sept. 30 and nine deaths worldwide. 

The FDA said it is “considering requiring implants to carry what’s called a boxed warning — the agency’s strongest safety warning. And it may require doctors and patients to sign checklists of risks to make sure women have the necessary information to make an informed decision,” as Laurie writes.

Alabama state Rep. John Rogers (D) argued abortion "ought to be a woman’s choice” in Montgomery, Ala., on May 1. (Video: WVTM13)

OOF: A Democrat in Alabama’s House is drawing criticism for his remarks following the passage of a measure making it a felony to perform an abortion at any stage in pregnancy, as our Post colleague Katie Mettler writes.

“I’m not about to be the male to tell a woman what to do with her body,” said state Rep. John Rogers as he took to the House floor to express support for a woman’s right to choose. “She has a right to make that decision herself.”

He then added: “Some kids are unwanted, so you kill them now or kill them later,” he said. “You bring them into the world unwanted, unloved, then you send them to the electric chair. So you kill them now or you kill them later. But the bottom line is that I think we shouldn’t be making this decision.”

Alabama Senate Majority Leader Greg Reed (R) called the remarks “chilling.” “His comments should be condemned at the state and national level,” Reed said.

From March for Life:

OUCH: A federal jury found five top executives of drug manufacturer Insys Therapeutics guilty of criminal racketeering following a 10-week trial and 15 days of deliberation.

The top executives, including company founder John Kapoor, were found guilty of charges involving bribing physicians to prescribe the company's potent fentanyl spray to patients who didn’t need them. "The trial brought out evidence that the company paid doctors sham speaking fees and that in one case, an exotic dancer-turned-company executive gave a doctor a lap dance to encourage him to prescribe the spray, Subsys, which is used for pain suffered by cancer patients," our Post colleague Lenny Bernstein reports.

The case against Insys executives is just one of a swath of cases across the country that aim to hold opioid manufacturers to account for their role in the nation’s deadly opioid epidemic. Lenny writes that criminal charges against drug company management are rare.

— In a separate case, the state of West Virginia and drug distributor McKesson Corp. announced a $37 million settlement in a lawsuit over the company’s role in the opioid crisis.

McKesson did not acknowledge wrongdoing, but agreed to pay $14.5 million this year and $4.5 each year for five years, with money going toward tackling the crisis, Lenny reports.

The settlement is a record agreement for the state and also marks the largest payment from any of the 13 drug wholesalers that West Virginia has been going after legally.

“McKesson distributed nearly 100 million doses of oxycodone and hydrocodone in West Virginia — home to 1.8 million people — between 2007 and 2012, the state charged,” Lenny reports. “That included, for example, 1.3 million doses in Boone County, where 24,629 people lived in 201o.”

AGENCY ALERT

— Annual deductibles have skyrocketed for people with job-based health insurance, the most common form of coverage for working-age Americans, according to findings by the Los Angeles Times.

One in 6 Americans who get health coverage this way report having to make “difficult sacrifices” to be able to pay for health care, while 1 in 5 report that health-care costs have taken up all or most of their savings. More than 4 in 10 workers who are in high-deductible plans say they don’t have enough savings to cover that deductible, the L.A. Times’s Noam N. Levey reports on the findings in this first report in a series on high-deductible health plans. 

In the past dozen years, those high-dollar deductibles in job-based health plans have reached an average of more than $1,300 annually.

The findings are based on a nationwide poll from the L.A. Times, which partnered with the Kaiser Family Foundation, with supplemental analysis from the Health Care Cost Institute and the Employee Benefit Research Institute. “The explosion in cost-sharing is endangering patients’ health as millions, including those with serious illnesses, skip care, independent research and the Times/KFF poll show,” Noam writes. “The shift in costs has also driven growing numbers of Americans with health coverage to charities and crowd-funding sites like GoFundMe in order to defray costs.”

STATE SCAN

— Washington D.C. residents may soon be able to legally buy marijuana in the nation's capitol. Mayor Muriel Bowser (D) announced a bill that would legalize recreational marijuana dispensaries in the city. 

Currently, residents in the D.C. can legally grow and possess small amounts of marijuana under a voter-approved law from 2014. It is not legal, however, for residents to purchase pot. And the city can’t tax sales of marijuana because of a federal budget provision blocking it from passing or enforcing marijuana legalization laws, as our Post colleague Fenit Nirappil writes.

Bowser’s “Safe Cannabis Sales Act” would rename and task the Alcoholic Beverage Regulation Administration with licensing and overseeing marijuana businesses. “The minimum age to purchase marijuana would be 21. The bill would also crack down on attempts to avoid the existing restrictions on selling marijuana by offering it as a gift in exchange for purchasing clothing, artwork or other items,” Fenit writes.

MEDICAL MISSIVES

— As measles cases continue to surge across the country, the spread has put parents of babies too young to vaccinate in a bind.

Usually infants don’t get a first measles vaccination until after their first birthday, but as the New York Times’s Julie Bosman reports, some parents have been given “little choice but to chance exposing their yet-to-be-vaccinated babies any time they leave home.” But it also means some parents are avoiding public areas, including public transportation, malls and playgrounds.

Julie spoke, for example, with parents near Detroit, which has recently been a site of a major measles outbreak. A 29-year-old mother Lucretia Sims said there are “just some places that we don’t go.” “I think people have gotten a little selfish,” she told Julie, talking about families who choose not to vaccinate. “We depend on the community to take care of each other. The babies have no options.”

—  And here are a few more good reads from The Post and beyond: 

‘Leave my family out of it’: Nurse-turned-legislator gets death threat over controversial vaccine bill (Eli Rosenberg)

CDC urges helmet use to prevent severe head injuries while riding scooters (Luz Lazo)

Baltimore Mayor Catherine Pugh resigns amid book scandal (Paul Schwartzman and Peter Hermann)

Police took a cancer-stricken toddler from his parents. Their supporters call it a ‘medical kidnapping.’ (Meagan Flynn)

CBO: 7 million more uninsured after ObamaCare mandate repeal (The Hill )

OPIOID OPTICS

Cocaine deaths up in US, and opioids are a big part of it (Associated Press)

HEALTH ON THE HILL

Amy Klobuchar Proposes $100 Billion for Addiction and Mental Health (New York Times)

Sen. Michael F. Bennet of Colorado becomes the latest Democratic presidential candidate (Michael Scherer)

INDUSTRY RX

Burger King’s ‘Real Meals’ are about more than trolling McDonald’s. They’re about mental health. (Rachel Siegel)

DAYBOOK

Coming Up

  • The Senate Health, Education, Labor and Pensions Committee holds a hearing on the 21st Century Cures Act on May 7.
  • The Washington Post Live will host actress and mental health advocate Glenn Close and Sens. Debbie Stabenow (D-Mich) and Roy Blunt (R-Mo) for an event on mental health and addiction on May 16.
SUGAR RUSH

Late-night hosts had a lot to say about Attorney General William Barr's week:

The day after his testimony before the Senate, Attorney General William P. Barr skipped the House Judiciary Committee's hearing over special counsel Robert S. M (Video: Drea Cornejo/The Washington Post)
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