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HHS must scrap new 'religion' division

by BAR Editorial Board

The Trump administration is making good on its pledge to social conservatives that the federal government would cater to their wishes (whether legal or not). Just in time for President Donald Trump's one-year anniversary, health professionals are being given a license to discriminate. The Department of Health and Human Services announced a new rule under which its Office of Civil Rights will create a new division dedicated to permitting health professionals to grant or refuse medically appropriate services or other job duties based on their religious or moral beliefs. Lambda Legal Defense and Education Fund, which released a detailed analysis of the new rule, said it is designed to "facilitate refusals of medically necessary care for individuals who are transgender or in a same-sex relationship, as well as the full range of reproductive health services and any other services to which an employee or a licensed medical facility might object." Fittingly, the new unit will be called the Conscience and Religious Freedom Division.

This news came the same week it was reported that Trump's attorney paid porn star Stormy Daniels $130,000 just before the election last year to keep quiet about a relationship she had with Trump in 2006, just after his new third wife, Melania, gave birth to their son. Now, we don't have a problem with Trump's alleged infidelity, but it's hypocritical for him to be banging a stripper yet impose Christian conservatives' values on the country through the establishment of this ridiculous "conscience" office.

This new rule is another of many tools that the administration is using to quash a wider acceptance of LGBT people; this has become evident in the last several years, and has steadily increased since the U.S. Supreme Court legalized same-sex marriage nationwide in 2015. Last May, Trump signed a "religious liberty" order that, while more limited than fundamentalists wanted, nonetheless sent a chilling message that religious freedom trumps all else in the Constitution.

Meanwhile, the court has inserted itself back into the culture wars with the Masterpiece Cakeshop case that will be decided this year. The defense relies on a similar premise: businesses that provide a service have a right to discriminate against those with whom they disagree for religious reasons.

Lambda Legal correctly points out that the new religious liberty division within HHS "raises serious legal questions." Freedom of religion is enshrined in the Constitution, but that doesn't give it more weight than other protections; nor does it give people the right to use religious or moral beliefs as grounds for violating the rights of others.

Thankfully, California has some of the strongest non-discrimination laws in the country. And, as we report this week, groups like Equality California are working with state representatives and others to determine whether legislation or litigation might be necessary to stave off implementation of the new HHS rule.

For LGBTs living in California, the issue isn't so much about what happens here, but what happens when they travel, especially to a red state. If a married same-sex couple went to South Carolina to visit relatives and one of them got sick or was in a car crash, they could potentially be denied hospital care because the emergency room physician is homophobic. And while trans people should not have to worry too much about gender reassignment surgery being affected, it is certainly possible that they could be discriminated against for unrelated medical care. (Trans woman Parker Molloy pointed out on Twitter that no one has ever demanded that a doctor who hasn't specifically - and voluntarily - trained to perform transition-related procedures actually perform transition-related procedures on them.)

Of course, anti-LGBT health care providers exist everywhere, which makes the new rule problematic for anyone in states without strong non-discrimination laws to protect them. The Hippocratic Oath requires a physician to "do no harm." It's hard to see how the HHS rule complies with the historic adherence to that ethical standard. Other medical professionals abide by their own codes of conduct, and none say, "You can refuse to treat someone because of your religious beliefs." That is, until now. It sets a truly dangerous precedent.

Lambda Legal notes that the work of this new division actually "defies the avoid-harm-to-others test in multiple ways." It is inconsistent with two core constitutional guarantees: equal protection under the law and that the government must not elevate the religious beliefs of some above the needs of others to be protected from harm, including the harms of discrimination. Additionally, federal agencies must follow the federal statutes that protect LGBT people and others from discrimination, specifically regarding the Affordable Care Act.

The best course of action is for HHS to immediately rescind the new rule and scrap the new Conscience and Religious Freedom Division. The proposed office is alarming because it invites bias and religion-based mistreatment of LGBTs that many of us have spent years combatting. Licensed health professionals who receive federal funding should not have an ability to discriminate. The problem is that in the Trump administration, no one believes there's anything wrong with that.

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