This post has been updated.
The administration’s move marks the resurgence of religious liberty advocates within the federal government and represents its latest effort to elevate “conscience protections” within the health care realm. Conservative groups welcomed the action while critics warned it could lead to discrimination on the basis of sex as well as gender identity and sexual orientation.
In announcing the new division, at an event featuring Republican lawmakers and religious leaders, HHS Acting Secretary Eric Hargan noted that many of the nation's hospitals, clinics and hospices are run by faith-based groups that oppose procedures like abortion and sterilization.
“For too long, too many of these health-care practitioners have been bullied and discriminated against,” he said.
According to the director of the department’s Office for Civil Rights, the division will not only consider complaints that might have previously languished but will also engage in public education and, possibly, policymaking. Training and research activities also will be covered.
Roger Severino said in an interview that OCR has seen a “pretty dramatic uptick” in health-care workers’ complaints related to moral and religious beliefs — from 10 during the entire Obama administration to 34 since Trump’s election. He said a “career senior executive” will be appointed to investigate those types of issues.
“We are trying to signal to the world that we are open for business, and we hope to have an effect,” he said.
Numerous existing laws prohibit institutions with federal funding from compelling health-care workers to perform services with which they object on moral or religious grounds. Some of the existing federal statutes “are quite broad,” Severino said.
On the HHS website Thursday, a Conscience and Religious Freedom section outlined the types of procedures likely to come under intensified federal scrutiny — accompanied by a photo of a female health-care worker in a Muslim headscarf. The description of the division's mandate cites abortion, sterilization and assisted suicide as examples of the types of procedures covered. But legal experts said the language appears likely to also cover a host of other scenarios, such as treating transgender patients or those seeking to transition to the opposite sex.
It is unclear whether HHS will issue new regulations to clarify its approach to such conflicts, but conservatives said they now have a chance to challenge state reproductive policies as well as other mandates. In June 2016, HHS officials rejected a religious coalition’s complaint against a California requirement that state insurers provide abortion coverage on the grounds that the complainants did not “meet the definition of a ‘health care entity.’”
Louise Melling, deputy legal director for the American Civil Liberties Union, said in an interview that the broad grounds for a complaint that HHS laid out, coupled with the administration's past record on issues such as gender identity protections and contraception coverage, suggest officials will curtail services for certain groups if health-care workers lodge moral objections. Decades-old statutes that refer to sterilization services could potentially be invoked when referring to gender transition therapies, she noted.
“There’s every reason to think that this administration is going to place religious objections over the health and lives and rights of individuals,” Melling said.
Asked if the administration considers gender identity or sexual orientation to be a protected class, Severino said the department was barred from doing so because of a 2016 federal court injunction out of Texas.
The announcement, made one day before abortion opponents' annual March for Life, builds on two rules HHS issued in October that allowed employers, including for-profit businesses, to claim moral or religious exemption from providing no-cost contraceptive coverage through their health insurance plans.
And it comes as the Supreme Court considers a First Amendment case regarding a Colorado baker who declined to make a custom wedding cake for a same-sex couple.
Speakers at Thursday’s launch event repeatedly criticized the Obama administration for narrowing such exemptions. House Majority Leader Kevin McCarthy (R-Calif.), for one, said the previous administration expected health-care workers “to conform” rather than follow their religious beliefs. “What a difference a year makes,” he added.
Severino echoed that theme, saying that “HHS has not always been the best keeper of this liberty.”
“Governments big and small have treated conscience claims with hostility instead of protection, but change is coming, and it begins here and now,” Severino said.
And Montse Alvarado, executive director of the Becket Fund for Religious Liberty, a nonprofit law firm, faulted Obama-era officials for “forcing Americans to choose between their beliefs and their livelihood.”
Yet medical organizations and women's and LGBT rights groups expressed concern that the policy will hurt vulnerable populations and create an unequal system of health care. The Obama administration had bolstered civil rights protections in health care, including barring medical providers and insurers from discriminating in services or access to coverage based on gender as well as gender identity.
Kelli Garcia, senior counsel at the National Women's Law Center, said “the wording on the rule creating the office appears to open the door for discrimination against patients because of their sexual orientation, gender identity or a whole host of other reasons.”
Garcia said she worries that cases of denied or delayed care could multiply, describing controversies like one in Michigan in 2015, when a pediatrician refused to see an infant because the parents are lesbians. Catholic Hospitals have been sued for delaying care to women in the midst of miscarriages, putting their health at risk, because there was still a fetal heartbeat.
“The issue is this emboldens people who want to be able to deny this care,” she said.
The National LGBTQ Task Force minced no words in its response to the administration's action. “We are not fooled: The new office announced this morning is meant to make it easier for people to discriminate, not to protect people of faith,” it said. “Health professionals have a duty to care for all their patients regardless of one's gender identity, sexual orientation, faith, creed, race, political views, gender, or disability, and no one should be denied care for being who they are.”
Most of the country’s large physician and nursing groups have their own ethics policies regarding conscience objections. The American Medical Association, for example, gives physicians the latitude to act on their moral views to refuse to participate in torture, interrogation or forced treatment. Yet its ethics code also says doctors should not refuse to care for patients based on “race, gender, sexual orientation, gender identity, or any other criteria that would constitute invidious discrimination.”