On May 2, the Trump administration posted the final version of its long-expected "refusal of care" rule. This dangerous new policy has the strong potential to undermine sexual and reproductive health policy and patients’ rights and care in the United States and possibly abroad.
The Department of Health and Human Services (HHS) claims in the rule that it is merely raising awareness about and enforcing a collection of long-standing federal laws. Yet in truth, the rule broadly defines key terms in these laws in ways that expand the power of individuals and organizations in the health care field to refuse to provide or be involved with services, information and referrals to which they have religious or moral objections.
The final rule is in most respects quite similar to the version first proposed in January 2018. Despite some changes, the Trump administration is still providing potent new tools for already powerful health care, educational and social services institutions to impose their values and agenda on society.
The full consequences of the refusal of care rule are not yet known, because the Trump administration and its allies could use it in numerous ways. Yet, in the rule itself, HHS provides some signals about what might be to come. For example:
- Employers might be empowered to deny employees and their dependents coverage for abortion and contraceptive care, because the rule counts "plan sponsors" as health care entities with certain refusal rights;
- Health care providers might deny patients the information they need to provide informed consent to their medical care, because of the rule’s expansive definitions of terms like "assist" and "refer" and because HHS essentially argues that providers have no obligation to inform patients about options the provider does not offer;
- Hospitals and health care providers might delay or deny emergency care related to abortion, ectopic pregnancy and miscarriage because the rule points to lawsuits involving such denials as examples of potential violations of federal refusal laws;
- Pharmacists and pharmacies might refuse to fill prescriptions that they see as related to contraception or abortion, even when required by state law, because the rule explicitly adds them to it definition of a health care entity;
- Organizations and individuals might claim the right to ignore federal, state and local policies that bar discrimination against patients on the basis of gender, sexual orientation and other characteristics because the rule contains no clear exceptions for those policies;
- Foreign governments, foreign nongovernmental organizations and intergovernmental organizations such as the United Nations that receive HHS-administered funding would be forced to grant refusal rights to health care workers, possibly in conflict with other countries’ own laws, because those foreign and international agencies are explicitly included in the rule’s definitions.
Through the final rule, HHS grants its Office of Civil Rights and its new Conscience and Religious Freedom Division sweeping enforcement powers to impose its extreme interpretation of federal refusal laws on health care institutions, state and local governments, foreign governments and international agencies. These new powers are in line with an April 2019 overhaul of OCR’s mission statement, which emphasized its role as a "law enforcement agency."
The rule also lines up with other actions by the Trump administration, such as its recent attacks on the Title X national family planning program; its ongoing attempts to undermine the Affordable Care Act’s contraceptive coverage guarantee; and its expected attempt to weaken the Affordable Care Act’s antidiscrimination protections, particularly its protections for transgender patients and for people who have had abortions.
HHS will not have the last word on this subject. Legal action against the final refusal of care rule has already begun. Moreover, the continued effort to stretch federal refusal of care laws to their limits and beyond highlights the need for Congress to reassess those laws.
The bottom line is that policymakers must ensure that the fundamental American value of religious liberty is never abused to give individuals and organizations the right to impose their beliefs on others, to block patients from receiving information and care, or to discriminate.