A leaked draft of a Trump administration executive order expanding religious protections could make it easier for employers to deny contraception coverage and roll back anti-discrimination protections for LGBTQ individuals seeking healthcare services.
A copy of the draft order, titled “Establishing a Government-Wide Initiative to Respect Religious Freedom,” was posted online Thursday by the Investigative Fund, a not-for-profit organization dedicated to investigative journalism. The order has not been signed, and a White House spokeswoman was quoted by the Wall Street Journal as saying the administration has no plans to act on it "at this time."
The order would exempt “all individuals and religious organizations” from covering preventive care services as mandated by the Affordable Care Act if they have objections based on “religious or moral reasons." The inclusion of contraception as a preventive service guaranteed in ACA-compliant plans has been the target of several lawsuits, twice reaching the U.S. Supreme Court.
The draft order also would ban the U.S. Treasury Department from imposing any tax penalties against a person, church, or other type of religious organization “…on the basis that such person or organization believes, speaks or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union between one man and one woman, sexual relations are properly reserved for marriage, male and female and their equivalents refer to an individual's immutable biological sex as objectively determined by anatomy, physiology or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life."
A “religious organization” can include for-profit companies “operated for a religious purpose” even if that purpose is not “exclusively religious.” It also says people and organizations do not forfeit their religious freedom when providing social services, education, or healthcare….”
“It means hospitals, healthcare clinics and doctors could refuse to treat lesbian, bi and trans women seeking STI [sexually-transmitted infection] and HIV testing or counseling,” said Sarah Warbelow, legal director for the Human Rights Campaign. Warbelow said the order could also allow healthcare providers to discriminate against trans women seeking preventive care services covered by the ACA on religious grounds, which include cancer screenings and mammograms.
Under the order, hospitals and health systems with religious affiliations would be exempt from laws that prohibit providers that are receiving federal money from discriminating against patients based on sexual orientation, gender identity or transgender status.
It is unclear whether the order would supersede state antidiscrimination laws in 22 states that make it illegal for hospitals to discriminate against LGBTQ patients regardless of religious beliefs.
“If you had a clinic or hospital that lost its accreditation because it was discriminating against LGBTQ people, the federal government would basically have to treat them as though they were accredited,” Warbelow said. “They'll continue to receive Medicaid and Medicare, federal grants and be able to still contract with the federal government.”
It is uncertain how the order, if signed, would affect a federal anti-discrimination lawsuit against San Francisco-based Dignity Health. A transgender nurse alleges in the complaint that a Dignity-owned hospital where he worked denied coverage for a double mastectomy and phalloplasty operations.
Several Catholic hospitals have been the subject of lawsuits by patients for their refusal to provide certain medical services such as abortion or sterilization based on religious directives that critics say are discriminatory.
Discrimination has been recognized as a contributing factor for why LGBTQ people tend to have poorer health outcomes compared to the rest of the population. Human Rights Campaign's 2016 Healthcare Equality Index found 56% of LGBTQ people reported experiencing some form of discrimination when receiving healthcare, while 70% of transgender individuals reported experiencing discrimination.
LGBTQ people often cite lack of sensitivity or lack of knowledge about their health needs as reasons for delaying or forgoing care.