New HHS Division to Protect Clinicians With Religious Objections

Kerry Dooley Young

Disclosures

January 18, 2018

WASHINGTON ― The Trump administration announced plans today to help healthcare professionals opt out of performing and assisting with abortions and other medical procedures to which they object.

The Department of Health and Human Services (HHS) said it will form a Conscience and Religious Freedom Division within its Office for Civil Rights (OCR). HHS said it is seeking to "more vigorously and effectively enforce existing laws" regarding medical professionals' right to claim that certain procedures would violate their personal and religious beliefs.

Appearing on the HHS website today is a page detailing the type of procedures that would come under the new office's authority, such as abortion, sterilization, physician-assisted death, and related training and research activities.

But many groups fear the language underlying the new office's mandate is broad enough to threaten discrimination to individuals seeking medical assistance beyond the procedures mentioned on the HHS website. Groups that represent transgender people and those working to keep abortion legal and accessible protested that the work of HHS' new office could result in harm to people in need of treatment.

"The creation of an unnecessary new division that is likely to promote a license to discriminate diverts needed enforcement resources and encourages discrimination against LGBTQ people," said Sarah Warbelow, Human Rights Campaign legal director in a statement on the group's website. "Every American deserves access to quality health care, and that should not be determined by the personal opinions of individual medical providers or administrative staff."

"The administration appears set to go far, far beyond the reasonable accommodations that have long existed in our laws," said Harper Jean Tobin, director of policy at the National Center for Transgender Equality, in a statement emailed to Medscape Medical News. She said a potential so-called conscience regulation from the Trump administration "would be an invitation to deny lifesaving care."

Opponents of abortion, such as National Right to Life, welcomed the creation of the new office, which arrives ahead of President Donald J. Trump's planned satellite address Friday to the March for Life rally. Marjorie Dannenfelser, president of abortion opponent Susan B. Anthony List, thanked the administration for the creation of the new office. She also urged HHS to release new regulations "further clarifying the laws this division will enforce."

HHS already has outlined duties for the new Conscience and Religious Freedom Division within the civil rights office. Among its tasks will be "conducting compliance reviews, in consultation with the HHS' Center for Faith-Based and Neighborhood Partnerships, where considered appropriate," the agency said in a notice to be published in the Federal Register on Friday.

Dueling Narratives

OCR Director Roger Severino depicted HHS's efforts as attempts to stop medical professionals from being bullied into participating in abortion procedures.

"For too long, 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 in a press briefing held here today.

Several speakers at the HHS press conference cited the case of Cathy Cenzon-DeCarlo, a New York nurse who battled in court with her employer, Mount Sinai Hospital, in a much noted 2009 abortion case. It took until 2013 for HHS' OCR to complete an investigation of Cenzon-DeCarlo's complaints about having been compelled to assist with a procedure and then discriminated against afterward. Mount Sinai agreed to policy changes meant to better accommodate personnel who raise personal and religious objections to procedures, according to an HHS letter made public by the Alliance Defending Freedom, an abortion opponent.

The new Conscience and Religious Freedom Division "is an essential step to protect pro-life nurses like Cathy DeCarlo, who was threatened with the loss of her job if she didn't assist in a traumatic late-term abortion," said Dannenfelser, of the Susan B. Anthony List, in an email to Medscape Medical News. "We also continue to urge Congress to enact a private right of action so victims will be able to seek relief in court regardless of who is in the White House."

Taking the opposite view, Planned Parenthood today cited the case of a Michigan woman who claims she was denied adequate healthcare during a miscarriage because of hospital personnel's opposition to abortion. Tamesha Means arrived at Mercy Health Partners in Muskegon, Michigan, when her water broke after being pregnant for only 18 weeks. Owing to directions written by Catholic bishops, Means was sent home twice, although she was in severe pain, with virtually no chance that her pregnancy could be completed and at serious risk to her health, Planned Parenthood said.

The creation of the new division within HHS' civil rights office is "the Trump-Pence administration using the government office whose mission is to protect against discrimination to instead to give providers license to discriminate," said Dana Singiser, vice president of public policy and government relations at Planned Parenthood, in a statement emailed to Medscape Medical News. "This is the latest example of this administration's efforts to block women, transgender people, and other marginalized communities from accessing health care."

Willie Parker, MD, chairman of the nonprofit Physicians for Reproductive Health, told Medscape Medical News in an email that the HHS move "could embolden some providers and institutions to discriminate against patients based on an individual's health care decisions.

"Abortion, contraception, and sterilization are a part of comprehensive reproductive health care and essential to the health of patients," Dr Parker said. "Professional medical organizations such as the American College of Obstetricians and Gynecologists have clear guidance on the issue of refusal, noting that refusals of care should be limited and that the duty to the patient comes first."

There were no immediate comments on the new HHS office by the American Medical Association (AMA) or other large groups representing physicians.

Medical professionals have long wrestled with questions about abortion and other procedures to which some of them object. The AMA's code of ethics, for example, notes that physicians are expected to provide care in emergencies and not practice discrimination when deciding whether to enter into a professional relationship with new patients. The code also suggests that physicians refer patients to another physician or institution to provide treatment that they decline to offer.

"Thus physicians should have considerable latitude to practice in accord with well-considered, deeply held beliefs that are central to their self-identities," the AMA code says. "Physicians' freedom to act according to conscience is not unlimited, however."

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