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Trump administration rolling back health care discrimination protections during COVID-19 crisis

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Last month, as the COVID-19 pandemic was at its peak in the U.S., the Department of Health and Human Services (HHS) moved toward finalizing a rule to get rid of many of the nondiscrimination protections in health care and insurance coverage that are part of the Affordable Care Act (ACA). The rule, which was proposed in May 2019, would rewrite Section 1557 of the ACA, which bans discrimination on the basis of race, color, national origin, sex, age, and disability in health programs receiving federal funding, which includes most health facilities like hospitals and doctors’ offices and most health insurance companies. According to Politico, the rule is in the last steps before being publicly released.

This is the latest in a series of moves by HHS, currently led by Secretary Alex Azar, to create barriers to health care and benefits for women, LGBTQ people, and immigrants. For the past three years, HHS has issued rules and regulations expanding religious exemptions, blocking access to comprehensive reproductive health care, and curtailing discrimination protections under the Affordable Care Act. These include last year’s dismantling of Title X, the nation’s public family planning program, by prohibiting abortion referrals and eliminating noncoercive counseling for all pregnant patients. The domestic “gag rule” also required physical and financial separation for clinics that provided both Title X–funded services as well as abortions, which are not funded by the program. The Guttmacher Institute found that this led to one-quarter of the service sites, including Planned Parenthood, leaving the Title X family planning network instead of complying with the new regulations.

In 2018, HHS created a new division in the Office Civil Rights, the Conscience and Religious Freedom Division, to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom,” according to HHS. And last year, HHS issued the Health Care Refusal Rule, which expanded the ability of individuals and health care organizations to opt out of providing particular medical services and even information, if they objected on moral or religious grounds; in November, the rule was blocked by a judge from going into effect.

HHS has been working for years to undo the ACA’s discrimination protections. “We've seen a real emphasis in proposed regulations to push through religious exemptions for hospitals, health care providers, and insurance companies to choose who they serve, and that has really impacted LGBTQ people, religious minorities, and women,” said Naomi Goldberg, policy research director at Movement Advancement Project (MAP), a research think tank focused on LGBTQ civil rights. “It's important to remember that there is a patchwork of protections for LGBTQ people, and the ACA tried to craft a national standard [with Section 1557]. For HHS to work to undo this creates a void, and LGBTQ people are left to navigate this all on our own. This would be upsetting at any time, but pushing through a final rule during a pandemic to further discrimination is unconscionable — why at all, but why now?”

Once this rule is issued, it will likely “erase existing regulatory protections that make explicit that discrimination based on sex includes discrimination against transgender people and discrimination based on reproductive healthcare decisions; and would dramatically expand the religious exemption by broadening the range of entities that would be exempt from the nondiscrimination provisions,” statedConnecting the Dots: Trump Administration Efforts to Create a License to Discriminate Across the Country, a report from the Center for American Progress, the ACLU, and MAP. Advocates are concerned that without explicit protections, LGBTQ people will be left especially vulnerable to discrimination and when trying to access critical care during the pandemic.

“This administration continues to make policies that allow people to be denied coverage and care and when you have a pandemic, people won't have access to the services that they need,” said Candace Gibson, associate director of government relations at the National Latina Institute for Reproductive Justice. “Many immigrants are weighing the consequences of seeking health care, and there is a lot of fear about being deported or having a family member deported, and this already is a community without a lot of resources. If nondiscrimination protections are rolled back, it gives more tools for providers and insurance companies to discriminate. People's sexual and reproductive health care needs do not go away during a pandemic, and the safety net for this care has been decimated.”

The Supreme Court heard oral arguments on May 6 to determine the validity of HHS’ position that the Religious Freedom Restoration Act allows the department to grant broad religious exemptions from the ACA birth control benefit. If the HHS position is upheld, “this ruling would extend an absolute right to religious and moral refusals for both individual providers and institutions. The right of individual providers to religious and moral refusals can be capricious, such as not providing birth control to a woman who is not married to a man,” said Sue Ellen Braunlin, co-president of the Indiana affiliate of Religious Coalition for Reproductive Choice and a member of its national board. “These individual providers and hospitals are under contract with private and public insurers to meet the health care needs of insured people. It does not seem right that providers can refuse to provide services at will, leaving patients with no recourse for information and treatment options that are below the standard of care. It would surely be illegal under any previous administration’s DOJ and courts.”

HHS is comprised of agencies and programs that are crucial in fighting the spread of COVID-19 as well as providing assistance to people in need who are suffering the economic consequences of the pandemic. These include the Food and Drug Administration, the Centers for Disease Control and Prevention, the Administration for Children and Families, Medicaid, and Medicare. Advocates are deeply concerned about the policy priorities of many people in leadership positions at HHS, including Roger Severino, head of the Office for Civil Rights, who used to head the religious liberty program at the Heritage Foundation, a conservative think tank, and who has a history of opposing same-sex marriage and transgender patients’ rights; and Diane Foley, who oversees the Title X program at the Office of Population Affairs and previously was head of the Life Network, an anti-abortion group.

In late April, President Trump was rumored to be considering firing Azar, but two of the names circulating as his possible replacement, Seema Verma, Administrator for the Centers for Medicare and Medicaid Services, and Deputy Secretary Eric Hargan, are potentially just as problematic. As a health consultant in Indiana when Mike Pence was governor, Verma crafted a Medicaid plan that imposed monthly fees for some recipients and coverage lockouts for people who missed payments. “It’s hard to pick who is worse,” said Mary Alice Carter, senior advisor at Equity Forward, a watchdog organization that monitors anti–reproductive health actions from organizations, agencies, and individuals, including HHS. “Verma is concerning not only because of her alignment with anti-abortion activists, but also her overall attitude towards Medicaid and Medicare has been to block access to providing it,” and Hargan has held official meetings while at HHS with the head of Center for Family and Human Rights, an anti-LGBTQ extremist organization. “It's hard to rely on this HHS to lead on science when we've seen time and time again that they've been driven by ideology and politics, and not with evidence-based decision-making and facts,” said Carter. “A lot of the leadership at HHS have put a lot of emphasis on blocking access to health care.”

The emphasis on religion over science was problematic before the pandemic, but now those decisions could mean lives lost. “The Trump administration has consistently pandered to a narrow group of religious extremists, and the pandemic response at HHS appears to be no different,” said Maggie Garrett, vice president for public policy at Americans United for Separation of Church and State, who pointed to news reports that “Severino objected to proposed CDC guidelines for reopening specifically because he believed the restrictions on churches were too onerous. Given the number of COVID clusters specifically linked to houses and services of worship, pushing this agenda of false ‘religious freedom’ as the right to religious privilege even if it harms others does not just misinterpret the Constitution, it puts millions of people at additional risk.”

These discriminatory practices and emphasis on promoting religious exemptions at the expense of people’s well-being have created vulnerabilities that the pandemic has exposed. “Instead of upholding people's civil rights, they have erased protections,” said Sharita Gruberg, director of policy for the LGBTQ Research and Communications Project at the Center for American Progress. “It's appalling at any time that government funds would fund discrimination, but especially so right now. LGBTQ people already are disproportionately represented in the homeless population, unemployment, and to have underlying health conditions, and are more likely to be uninsured, every factor that could put someone at risk. LGBTQ people take steps to avoid exposure to discrimination, so that could mean not going to the doctor, and not seeking necessary health care. And we are not seeing any outreach [from the federal government] to LGBTQ health centers or health care providers.”

But the pandemic has highlighted how interconnected we all are, and that denying care to certain populations impacts all of us. “This pandemic has shown that the health of the individual is dependent on the health of the community and vice versa," said Gibson.



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