Changes Apply to the Implementation of ACA’s Section 1557 That Protects Women, LGBTQ People, and Immigrants
The Trump administration just finalized a new rule that would harm health care access for women, LGBTQ people, and immigrants. The rule pertains to the implementation of Section 1557 of the Affordable Care Act (ACA), a section also known as the Health Care Rights Law, which protects against discrimination in health care.
The rule was finalized June 12, just days before the U.S. Supreme Court affirmed workplace protections against employment discrimination for LBGTQ people in its decision in Bostock v. Clayton County.
Comment Period Gathered 134,000 Comments Opposing the Rule
In August 2019, the Center for Reproductive Rights submitted to the Department of Health and Human Services (HHS) a comment objecting to the new health care rule. The Center’s comment argued that the proposed rule harmfully targets women, pregnant people, and the LGBTQ community for discrimination on the basis of sex, and in so doing violates the Administrative Procedure Act (the “APA”), standards of constitutional law, and international human rights norms. We strongly urged the agency to withdraw this proposed rule change in its entirety.
In addition, together with coalition partners, the Center collected more than 134,000 comments from the public opposing the new rule. Despite the clear public opposition to the proposed rule, the Trump administration still issued a virtually identical final rule.
Rule Attempts to Eliminate Protections Against Discrimination
The final rule attempts to eliminate explicit protections against discrimination on the basis of termination of pregnancy, sex stereotyping, and gender identity. Under the rule, for the first time the Department of Health and Human Services (HHS) is actively taking the position that the prohibition against sex discrimination under the Health Care Rights Law does not apply to discrimination based on sexual orientation. HHS also declines to commit to enforcing the law as it applies to discrimination on the basis of termination of pregnancy—meaning that individuals who either are seeking an abortion or who have had abortions might not have their rights vindicated by the HHS Office of Civil Rights if they face discrimination.
It’s important to understand that this does not mean that discrimination on these bases is now permitted under the law. The text of the Affordable Care Act incorporates Title IX’s prohibitions on sex discrimination. It is settled law that Title IX includes certain protections for termination of pregnancy, sex stereotyping, and gender identity.
The new rule also revokes protections for people with limited English proficiency. Under the previous implementation of the law, health care entities were required to post nondiscrimination notices and use so-called “taglines” (short statements indicating the availability of free language assistance services). The new rule rescinds these requirements.
“This rule is a cruel attempt to roll back protections against sex discrimination in health care, potentially harming some of our most vulnerable populations,” said Katherine Gillespie, Senior Federal Policy Counsel at the Center for Reproductive Rights. “Everyone deserves access to health care, free from discrimination.”
Administration’s New Rule Encourages Discrimination
By removing explicit mentions of pregnancy termination, sex stereotyping, and gender identity, the rule is designed to encourage providers to engage in discriminatory conduct. It also suggests that the HHS Office of Civil Rights intends to stop enforcement against these types of discrimination in the future, even though the underlying law still prohibits such discrimination.
Harmful effects of the new rule might include:
Denial of care for women and LGBTQ people: Under this rule, HHS indicates that it might not enforce the law as it protects women from discrimination based on their medical history, making it more likely that some women will experience denials of care because they have had an abortion in the past. The rule also states clearly that HHS does not consider discrimination on the basis of sexual orientation or gender identity to be sex discrimination. LGBTQ people already face substantial discrimination in the health care system—including providers who deny medical care and difficulty obtaining health insurance coverage. The rule would likely exacerbate this situation by encouraging discrimination against transgender people.
Reduced health care access for immigrants and others: The language–access protections that the proposed rule eliminates could make it significantly more difficult for people with limited English proficiency to access care.
Rule Especially Harmful During COVID-19 Pandemic
Section 1557 of the ACA was intended to protect people from discrimination—yet the Trump administration’s new rule undermines that objective. In the current pandemic crisis, it is especially important for government officials to ensure continued, timely access to reproductive health care. Instead, the Trump administration is allowing—and encouraging—denials of care that will particularly harm women, LGBTQ people, and immigrants. The new rule is the latest in a long line of attacks on these groups by the Trump administration.
More About the Health Care Rights Law
The Health Care Rights Law, Section 1557 of the Affordable Care Act, prohibits discrimination based on race, color, national origin, age, disability, or sex by health care entities that receive federal funds or programs administered by a federal government agency. This milestone provision is the first-ever federal protection against sex discrimination in health care.
Under the Obama administration, the regulation interpreting the law explicitly included protections for termination of pregnancy, sex stereotyping, and gender identity. This is consistent with the ACA, the underlying federal law—but it’s also what the Trump administration is attempting to undermine.