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Analysis

Battle Lines Drawn in Fight Over HHS Conscience Rule

By Steven Porter  
   May 06, 2019

At least one federal lawsuit has been filed to block the rule, which highlights disagreement over the nature of discrimination and accommodation in healthcare.

The city of San Francisco wasted no time when the Trump administration unveiled its final rule last Thursday to bolster providers' right to abstain from healthcare services as a matter of conscience or religious observance.

That same day, the city filed a federal lawsuit asking a judge to block the Health and Human Services rule from taking effect and ultimately to declare it unconstitutional. The case highlights a deep and long-running dispute over the nature of discrimination and accommodation in U.S. healthcare.

While current leadership of the HHS Office for Civil Rights says the Obama administration failed to defend religious providers' existing legal rights, others contend that patients from marginalized groups are the ones in greatest need of government protection.

"At its core, this rule is about denying people medical care," San Francisco City Attorney Dennis J. Herrera said in a statement announcing the lawsuit. "This administration is willing to sacrifice patients' health and lives—particularly those of women, members of the LGBTQ community, and low-income families—to score right-wing political points. It's reprehensible."

Herrera argues the final rule would reduce healthcare access and could cost San Francisco nearly $1 billion in federal funding if it refuses to comply. His office accuses HHS of exceeding its legal authority, violating the Administrative Procedure Act, and breaching several provisions of the U.S. Constitution.

Proponents of the final rule, however, say it appropriately respects physicians' right to refrain from healthcare services they see as contrary to their ethical obligations. That conscientious objection to a particular service is entirely different from a physician declining to care for one or more classes of people, said Farr A. Curlin, MD, a professor of medicine and medical humanities at the Duke University School of Medicine and co-director of the Theology, Medicine and Culture Initiative at Duke Divinity School.

"They are not refusing to care for gays or transgender patients or anyone else who is sick and in need of healing. Rather, they are objecting to practices that they believe contradict their profession to heal only, and never to harm," Curlin told HealthLeaders in an email. "With respect to sterilization, assisted suicide, surgeries to change secondary sex characteristics, and a number of other practices, there are reasonable concerns that the practices are not good medicine. We need physicians to have the freedom to refuse to cooperate in practices that they believe harm their patients."

Curlin said the final rule helps to sustain an openness to any provider who is willing to care for the sick and promote their health, ensuring a diverse provider landscape.

Related: HHS Policy Pendulum Swinging Back Toward Providers' Rights of Conscience

Related: What 7 Healthcare Execs Said About the HHS Freedom of Conscience Proposal

Related: HHS Launches Conscience and Religious Freedom Division

When the final rule was announced last week, HHS OCR Director Roger Severino said it would help to preserve consumer choice, encouraging providers to communicate openly about their own religious and ethical views so that patients may self-select like-minded providers. When asked during a press call how that would work in geographic areas dominated by provider organizations with a distinct religious perspective, such as Catholic-affiliated systems, for consumers who may not have the ability to go elsewhere for care, Severino reframed the question as a matter of life or death for religious providers.

"If the hospital's not there, no one gets care in many circumstances," he said, "so there's benefit to allowing diversity of belief in healthcare providers."

"Patients have options in America, and that is a good thing," Severino added. "We don't believe that anything will change with respect to patients having options with this rule. This rule merely provides enforcement tools for laws that are already in existence, already on the books, already the law."

Some who agree that physicians should not be coerced to act contrary to their deeply held views remain skeptical that a free-market approach to healthcare, in which consumers shop around for providers who agree with them, is sufficient.

"I don't think the market can solve the problems of inequity that we have," Aasim I. Padela, MD, MSc, director of the Program on Medicine and Religion at the University of Chicago, told HealthLeaders last year after HHS released its proposed rule.

Padela said there are often ways to accommodate both a patient's wishes and a provider's conscience when the two conflict.

For its part, San Francisco claims to have struck a proper balance between patient and provider rights already. When a member of the medical staff requests not to take part in a procedure, their manager must determine if the worker's request would negatively impact the patient's care, Herrera explained. Accommodations will be made, if possible. But that could include transferring a worker to another area that wouldn't require them to perform the task to which they object, a policy that Herrera admits puts the city in violation of the new final rule.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.


KEY TAKEAWAYS

Opponents of the rule say it effectively authorizes increased discrimination against women, LGBT patients.

Proponents of the rule say objecting to particular services isn't the same as declining to serve classes of people.


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