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The Biden administration on Monday afternoon moved to restore protections for LGBTQ Americans and other groups seeking health care that were removed during the Trump era, saying the rule would also cover pregnant women seeking health care, including abortion.
The proposed rule, issued by the Department of Health and Human Services, aims to clarify that sex-based discrimination includes decisions regarding “termination of pregnancy.” It comes as the federal health department has already cited federal civil rights laws — including parts of Obamacare — to warn pharmacists against denying access to drugs that can be used for abortions.
Health care organizations that receive federal funding would also be prohibited from discriminating in gender transition and other services, which have increasingly become the target of state legislative battles and litigation. Officials also emphasized that the new federal anti-discrimination language covers a patient’s sexual orientation and gender identity.
“I think most Americans are aware of their rights to be free from discrimination — but too often there are some communities that don’t have that freedom to exercise their rights to access care,” HHS Secretary Xavier Becerra told reporters Monday. “We want to make sure that whoever you are, whatever you look like, wherever you live, however you want to live your life, that you have access to the care you need.”
The proposed rule strengthens a provision, Section 1557 of the Affordable Care Act, that was created during the Obama administration but weakened by his successor and the subject of extensive litigation. The offer was also made part of the Biden administration’s strategy to secure access to abortion after the Supreme Court’s overturning decision Roe v. Wade.
“We are very pleased to be able to make this announcement today. This comes at an important time, especially after the Supreme Court’s wrong decision Dobbs,” Becerra said, referring to the Supreme Court ruling that led to abortion restrictions last month.
Experts said they are still analyzing the implications of the proposed rule in the battle over abortion rights as a cascade of states implement new restrictions.
“I think people who oppose this rule will try to interpret it as a mandate for abortion. That’s so far from the case,” said Katie Keith, director of health policy and legal initiatives at Georgetown’s O’Neill Institute.
HHS on Monday also asked the public to submit comments on the impact of Dobbs health care decision that employees could use to make changes to the final version.
The Biden administration “may just be holding its cards because it’s afraid of the backlash,” said Roger Severino, who led HHS’s Office of Civil Rights during the Trump administration and predicted the final rule could be “more aggressive ‘ regarding access to abortion.
LGBTQ advocacy organizations welcomed the announcement, saying the Biden administration was right to restore and expand federal language that would protect people seeking gender reassignment, people with disabilities and others who face discrimination.
“Today’s proposal restores critical protections that have been eroded by the Trump administration,” Kellan Baker, executive director and chief education officer of the Whitman-Walker Institute, said in a statement.
The White House has been revising the draft rule since March, holding meetings with advocates from the Heritage Foundation, the Family Research Council and other conservative and faith-based organizations that have opposed reversing the Trump-era changes. The groups argue that the rule change will force health care providers to perform procedures against their religious beliefs or allow children to undergo a gender transition that they may later regret.
“All we’re trying to do is advocate for caution and compassion informed by evidence, not ideology,” officials at Genspect, an international parenting group that has questioned the need for gender transitions, he wrote to administration officials in April after a meeting.
HHS officials on Monday said they tried to address some of the groups’ concerns by pointing to provisions that specifically address protections for providers who raise conscientious or religious objections to performing certain procedures such as abortion.
“It’s a victory of sorts,” said Severino, who led the Trump-era effort to create an office focused on conscience and religious freedom for health care providers. But he said other parts of the proposal were “downright scary,” citing provisions he said could be used to punish doctors who refuse to perform transition-related surgeries because of state or local laws or because they don’t believe the procedures are clinically appropriate.
“If you think they’re never clinically relevant, the government thinks you’re a bigot,” leading to a loss of federal funds, Severino said.
Meanwhile, LGBTQ groups have spent months warning that patients’ rights are under attack at home, in the workplace and in the courts.
“Affirming health care is basic health care,” David Brown, legal director of the Transgender Legal Defense & Education Fund, said in a statement last month after a federal court ruled that a North Carolina state health plan was wrong to deny patients access to hormone replacement therapy. replacement therapy, surgeries and other care related to gender transition.
The proposed rule would apply to health insurance plans that do business through the Obamacare, Medicaid or Medicare exchanges. For the first time, nondiscrimination provisions will apply to Medicare Part B, which covers doctor visits, certain preventive services and other outpatient care for those who are 65 or older or who have disability benefits. HHS officials said they were concerned that repeating the Obama-era rule inadvertently led to gaps in federal protections.
Biden administration officials say they are bracing for legal challenges amid ongoing litigation that has contributed to delaying its release. The Biden administration previously said in legal filings that the proposed rule would be issued in April.
“No doubt someone could challenge us and say we’re not interpreting the law correctly,” said Becerra, who previously served as California attorney general and is suing the Trump administration over its own rule changes. “We think we are.”
The Trump administration also reduced requirements that most health care providers post information in 15 languages and provide translation services. The new rule seeks to restore access to language assistance services.
“It may be small, but it’s also very important,” Becerra said.
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