The Department of Health and Human Services on Friday proposed to roll back protections under the 2010 health care law related to sex discrimination, which some advocates worry could affect health care access for people who are lesbian, gay, bisexual or transgender.
The proposal would reverse an Obama-era policy that protected gender identity and termination of pregnancy under non-discrimination protections.
Roger Severino, the HHS Office for Civil Rights director, said on a call with reporters that the rule is consistent with a federal court ruling from Judge Reed O’Connor of the Northern District of Texas — the same judge who last year said the entire 2010 health care law was invalid — and the Justice Department’s definitions.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Severino said. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.”
The Supreme Court has agreed to hear a trio of cases related to discrimination of gender identity and sexual orientation in its next term, which would likely answer questions about the constitutionality of the 2016 regulation and this proposed rule, if it were finalized.
The rule is part of a broader Office of Civil Rights strategy. The office recently released a final version of a different rule that would expand the types of religious and moral complaints it would enforce, to protect individuals who may object to assisting in procedures like abortion or assisted suicide.
The proposal released Friday affects the 2010 health care law, which includes language that prohibits discrimination on the basis of sex in health care — meaning a person cannot be denied coverage or access to care because of his or her sex.
Under the new proposed rule, which is subject to a 60-day comment period, a person’s sex would be considered their biological sex, rather than one’s internal gender identity.
“The action we are taking today conforms with the court injunction, as well as the position of the DOJ, but most importantly it conforms with the text of the law itself,” Severino told reporters.
The administration’s proposal would also roll back protections for women, since anti-discrimination rules would not cover “termination of pregnancy,” such as previously having an abortion.
Severino said the new regulation would save $3.6 billion in the first five years after finalization. He emphasized an injunction has meant the federal government cannot enforce the previous rule. He said the rule would not override a federal guarantee through the Emergency Medical Treatment and Labor Act, or EMTALA, that patients needing emergency care will get it.
The cost savings come primarily from eliminating a requirement that when health care companies distribute “significant communications” to patients and customers, they also must send non-discrimination notices and translation notification taglines in at least 15 languages.
Adam Sonfield, a senior policy manager at the Guttmacher Institute, which supports abortion rights, said the administration was trying to codify one group’s conservative religious beliefs.
“The Affordable Care Act’s Health Care Rights Law was designed to make sure that health care providers and powerful institutions can’t harm patients in this manner,” he said in a statement. “This proposed rule is a backdoor way to undercut this important federal law and weaponize ‘religious freedom’ to the detriment of other peoples’ health and rights.”
Katie Keith, an adjunct professor of law at Georgetown University’s Center on Health Insurance Reforms, told CQ Roll Call before the proposed rule was released that she expects the rule to be challenged in court when it is finalized.
“When there’s a final rule, that’s when I’d expect a flood of lawsuits,” she said.
Those lawsuits, which advocacy groups for transgender people promised Friday, will be only the latest in a series of many.
In 2016, the Obama administration tried to expand the health care law’s language to include gender identity, but the move was blocked by O’Connor. Friday’s proposed rule leans heavily on O’Connor’s decision.
That decision was released Dec. 31, 2016, and wasn’t appealed by the Trump administration when it took over the following month. So the 2016 regulations remain in place but HHS has not been enforcing the sex discrimination and termination of pregnancy provisions. O’Connor had denied outside groups including the American Civil Liberties Union and River City Gender Alliance the ability to intervene in the case.
Keith added that although O’Connor did not allow other groups to defend the case, the groups are now being allowed to renew their request to intervene in it.
A House Democratic aide said lawmakers have already started discussions on the best way to respond to changes that would undermine the health care law’s anti-discrimination protections. Still, any future House action from Democrats would likely face a steep path in the Republican Senate.
Washington Sen. Patty Murray, the top Democrat on the Health, Education, Labor and Pensions Committee, called the proposal “blatantly harmful, discriminatory, and wrong.”
“I’m going to keep fighting back against efforts to turn back the clock on people’s rights, and making sure everyone in this country is able to get the health care they need without interference from politicians who think their personal beliefs are more important than patients’ lives,” she said in a statement.
Sandhya Raman contributed to this story.
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