Plaintiff Christian Medical Association welcomes intent of new HHS rule to restore intent of Congress on sex discrimination

Washington, DC, May 24, 2019--The 19,000-member Christian Medical Association (CMA, www.cmda.org and www.Freedom2Care.org) today welcomed as "a move toward restoring rationality regarding sex discrimination in healthcare" a new rule proposed by the U.S. Department of Health and Human Services (HHS) that aims to restore the intent of Congress regarding sex discrimination in healthcare.

CMA CEO Designate Dr. Mike Chupp said, "While we and our attorneys are still reviewing this new rule, we welcome the intent of this new proposed rule as a move toward restoring rationality regarding sex discrimination in healthcare. We physicians know that prescriptions and medical procedures differ based on biological sex and that we must base our medical decisions on objective biology—not ideology.

"We will continue as always to care for all patients with compassion and competence while exercising professional, evidence-based medical judgment, adhering to objective ethical standards and at times, exercising conscience based upon moral standards."

CMA is party to a 2016 lawsuit that resulted in a federal court's preliminary injunction against the previous administration's HHS rule that attempted to redefine sex apart from biology to include internal perceptions of sex. Becket represents the CMA in that case. As also noted in that lawsuit, under the previous administration's rule, "HHS declined to add an explicit carve-out for abortion and abortion-related services parallel to the carve-out included in Title IX…."

The new rule, according to an HHS news release today, "proposes a return to the plain meaning of the words used by Congress in prohibiting sex discrimination."

Jonathan Imbody, CMA VP for Government Relations and Director of Freedom2Care, noted, "The proposed rule's stated purpose appears to be in line with what the American people have expressed through their elected representatives in Congress regarding sex discrimination, which is to ensure a level playing field for females and males, and also regarding abortion, which is to preserve conscience freedoms in healthcare.

"In the past, unelected agency officials attempted to use the Affordable Care Act (Obamacare) to force an ideological gender agenda upon virtually all healthcare institutions and professionals, regardless of professional judgment, ethical norms or religious convictions. Effective care for patients requires distinguishing biology from ideology."

HHS issues new rule to restore intent of Congress on sex discrimination

The U.S. Department of Health and Human Services today takes a step toward restoring the intent of Congress in enacting sex discrimination legislation. The court case mentioned in the HHS news release below, which resulted in a preliminary injunction to stop the "transgender mandate," was on behalf of the Christian Medical Association and other health professionals and several states. 

Press Release

FOR IMMEDIATE RELEASE 

Contact:  HHS Press Office May 24, 2019                                                                                    media@hhs.gov

HHS Proposes to Revise ACA Section 1557 Rule to Enforce Civil Rights in Healthcare,

Conform to Law, and Eliminate Billions in Unnecessary Costs

Today, the U.S. Department of Health and Human Services (HHS) proposed regulatory reform related to regulations issued under Section 1557 of the Affordable Care Act (ACA). The proposed rule would maintain vigorous civil rights enforcement on the basis of race, color, national origin, disability, age, and sex, while revising certain provisions of the current Section 1557 rule that a federal court has said is likely unlawful. The proposal also would relieve the American people of approximately $3.6 billion in unnecessary regulatory costs over five years.

Conforming to the Text of our Laws

In Section 1557 of the ACA, Congress directed HHS to apply existing civil rights laws and regulations to healthcare and the ACA Exchanges, including a 1972 law (Title IX) prohibiting discrimination on the basis of sex in certain federally funded programs. In 2016, HHS issued a new rule that redefined discrimination “on the basis of sex” to include termination of pregnancy and gender identity which it defined as one’s internal sense of being “male, female, neither, or a combination of male and female.”

In response to a subsequent lawsuit by several states and healthcare entities, on December 31, 2016, a federal court preliminarily enjoined the rule’s gender identity and termination of pregnancy provisions on a nationwide basis, finding them contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. Because the preliminary injunction continues to be in effect, HHS cannot, and has not since the date of the injunction, enforced the rule’s provisions the court said are likely unlawful. The proposed rule would revise the provisions subject to those injunctions to conform with the plain understanding recognized by the court.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said OCR Director Roger Severino. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives,” said Severino. “The proposed rule would accomplish both goals.”

Continued Robust Enforcement of Civil Rights Law

Under the proposed rule, HHS would continue to vigorously enforce prohibitions of discrimination on the basis of race, color, national origin, disability, age, and sex in healthcare, as Section 1557 provides. The proposed rule would also retain protections under the 2016 regulation that ensure physical access for persons with disabilities to healthcare facilities, and appropriate communication technology to assist persons who are visually or hearing-impaired. HHS’s proposed rule would also retain protections for non-English speakers, including the right to meaningful language access to healthcare, qualification standards for translators and interpreters, and limitations on the use of minors and family members as translators in healthcare settings. Regulated entities would also continue to be required to provide written assurance to the Department that they will comply with Section 1557’s civil rights provisions and the proposed regulation.

“We are committed to full enforcement of civil rights laws before, during, and after any rulemaking,” said Severino. “We are also committed to the elimination of regulations that contradict law or raise the costs of healthcare without achieving intended results.”

Removing Costly and Unnecessary Regulatory Burdens

The proposed revisions would eliminate $3.2 billion in unneeded paperwork burdens imposed by the 2016 rule. Covered entities report that the 2016 rule requires them to send billions of “tagline” notices each year informing patients and customers of their ability to have “significant documents” translated in at least 15 languages. When HHS adopted the 2016 rule, it projected notice and taglines costs of about $7.2 million in the first five years. Because the 2016 rule did not fully account for printing and mailing costs associated with these notices and taglines, it underestimated the burden of these requirements by over three billion dollars over five years. Instead of requiring regulated health companies to mail billions of paper taglines to mostly English speakers, the money saved could be used to more effectively address individual needs of non-English speakers such as by providing increased access for translators and interpreters.

The proposed Section 1557 rule estimates an additional savings of approximately $400 million over five years by eliminating duplicative requirements and reverting to well-established language access guidance, resulting in a total savings of approximately $3.6 billion in the first five years after finalization.

“As a child of Hispanic immigrants, I know how vitally important it is that people receive quality healthcare services regardless of the language they speak, and this proposal grants providers the needed flexibility for achieving that goal,” said Severino. “The American people are tired of unnecessary regulations getting in the way of access to affordable healthcare, and today’s proposal would remove $3.6 billion in regulatory burdens that are ultimately being passed down to patients,” Severino concluded.

Click to read the Proposed Regulation on Section 1557- PDF.

Click to read the proposed regulation Factsheet on Section 1557- PDF.

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*This HHS-approved document is being submitted to the Office of the Federal Register (OFR) for publication and has not yet been placed on public display or published in the Federal Register.  This document may vary slightly from the published document if minor editorial changes are made during the OFR review process.  The document that will be published in the Federal Register is the official HHS-approved document. 

*People using assistive technology may not be able to fully access information in these files at this time.  For assistance, please email OCR at OCRMail@hhs.gov or contact the OCR Call Center at (800) 368-1019.

*A Spanish version of this press release and the Factsheet will be provided in the near future.

Christian Medical Association doctors laud HHS conscience rule as protecting patients and doctors

Washington, D.C.—May 2, 2019—The 19,000-member Christian Medical Association, the largest national association of faith-based doctors, lauded a conscience law-enforcing rule finalized today by the U.S. Department of Health and Human Services (HHS) as a protection for both patients and doctors.

CMA CEO Dr. David Stevens said, "Our patients need to know that we as doctors can be trusted to conscientiously adhere to objective ethical standards and moral commitments that serve to protect them. They need to know we are not going to lay aside longstanding ethical norms and medical concerns just because ideologically-driven politicians or bureaucrats or hospital administrators might pressure us to do so by threatening our ability to practice medicine."

CMA Senior Vice President Dr. Gene Rudd, an OB/Gyn physician, said, "In recent years, some abortion advocates have proposed effectively banning pro-life physicians from medicine, essentially because we adhere to the Hippocratic Oath. That long-standing objective standard protects our unborn patients while also protecting our born patients from other abuses of medical power such as involuntary euthanasia and sexual abuse. Without pro-life OB/Gyn physicians, who will serve the millions of women and men who also hold to pro-life commitments?

Conscience protection is one of the treasures of our society. It is enshrined in the First Amendment of the Constitution, reflecting its importance. Some would want to take this right away from others when they disagree on certain issues. But protection for each person is critical to protection for all. The HHS conscience rules are critical to preserving this freedom.”

CMA Executive Vice President Dr. Mike Chupp observed, "We are committed to serving every kind of patient with compassion and competence, but that's very different from saying we will do any procedure or fill any prescription regardless of ethical or medical concerns. Healthcare professionals of faith and conscience are committed to the mantra ‘Anyone, Anytime, Anywhere but NOT Anything!’ Without conscience freedom in healthcare, whatever ideology the government chooses will be the grounds used to exclude all objectors. The result would be a loss of healthcare access for patients, and especially the patients of faith-based health professionals who often minister to the underserved and marginalized."

CMA Vice President for Government Relations Jonathan Imbody noted, "This HHS rule enforces and educates regarding existing conscience laws passed by Congress on a bipartisan basis, back when Congress was more bipartisan. The rule reminds the government and the health community that we all live in a country that values freedom of conscience and tolerance of diverse views. Conscience freedoms protect liberals, conservatives and everyone in between, on issues ranging from capital punishment to abortion to research ethics. Without tolerance for diversity and conscience convictions in healthcare, patients lose access to doctors, and health professionals lose their careers."

More information available at www.Freedom2Care.org:

·       Stories of conscience violations

·       Previous polling by Kellyanne Conway on conscience (e.g, 92 percent of faith-based physicians said they would leave medicine rather than compromise conscience)

·       CMA comments submitted to HHS on conscience rule

Religious students and faculty face discriminatory dogma

"Double, double toil and trouble; Fire burn and cauldron bubble."[i]

The cauldron of ideological hostility toward religious principles and people of faith at Yale Law School just boiled over, and its discriminatory policies targeting religious students threaten to ooze throughout academia and beyond. The school's new anti-religious policy illustrates the extent to which some academic institutions—including medical and dental schools--are willing to go to enforce secular dogma.

Law school withdraws aid from students who serve at faith-based ministries

An opinion piece in USA Today outlines Yale Law School's new aid policy that penalizes persons of faith:

"Under the guise of nondiscrimination, Yale Law School has announced it will blatantly discriminate. A student is barred from aid if she works at a synagogue that gives preference to Jewish applicants, but not if she works at an organization that peddles anti-Semitism yet hires all comers. A graduate is blocked from funding if she works for the Christian Legal Society, but not if she works for the Freedom from Religion Foundation. And a graduate is not eligible to receive loan assistance if she is a professor at Brigham Young University, but is eligible if she works for Berkeley."

A Yale Law School student reacted to the new policy:

"We are deeply concerned about what this means for the future of religious and conservative students at Yale. Who will want to attend a law school that limits your professional opportunities because of your religious convictions? Who will trust a school administration that buckles under pressure from an angry mob and throws its religious and conservative students under the bus?"

Yale Law School's academic version of an anti-religious pogrom advances an alarming campus trend of barring believers from benefits accorded to other students.

Medical and dental student groups face ouster

Medical and dental students who adhere to a biblical faith and/or to pro-life convictions face discrimination at schools that otherwise allow student groups to qualify membership based on sex (fraternities and sororities) and on other criteria related to groups' missions, but not on religious faith.

Anecdotal reports from Christian Medical and Dental Associations campus chapters include the following:

·       At the School of Dental Medicine in a private research university in Ohio: For 40 years, CMDA students had participated in a medical-dental school chapter, but dental students were denied the ability to form their own chapter:

“The group has not been approved because of the emphasis on God and especially because of the Bible sessions as written in the proposal you send. [We]…feel that it is not appropriate for us to endorse such activities."

·       At a large Illinois university: Administration officials de-recognized a 30 year-old CMDA chapter. They claimed that the chapter did not “meet the Board of Trustee’s policies regarding non-discrimination” because the chapter’s leaders are held to moral standards. Administrators wrote that because

“…students are not eligible to be leaders of the organization if they do not believe in God…your organization’s registration is denied.”

·       At the School of Dentistry at a midwestern Jesuit university: Government funds were used to build a dental school building, but administrators forbade the CMDA chapter from meeting on campus because they reportedly feared, ironically, legal consequences related to federal non-discrimination laws.

(Author at far right) Lobbying on Capitol Hill
with a BLinC student, campus ministry leaders
and religious freedom attorneys.

Other campus groups have felt the hot hand of anti-religious discrimination on their necks. The Becket law firm reports:

"In October 2017, the University of Iowa targeted Business Leaders in Christ (BLinC) and kicked them off campus because BLinC asks its leaders to share its religious beliefs—even though the university allows other groups to select leaders who share their mission and ideology. Becket is defending BLinC in federal court against the University of Iowa, asking the court to allow BLinC back on campus.

"On February 6, 2019, the court ruled that the university must end its unequal treatment of religious student organizations, and allow BLinC permanently back on campus. In light of continued official statements by the university that its policies would continue to exclude religious student groups, BLinC appealed to the U.S. Court of Appeals for the Eighth Circuit."

Professors also experience anti-religious targeting

Academic administrators intent on enforcing secular dogma do not limit their targets to religious students; they also train their sights on faith-following faculty.

Psychiatrist and professor Dr. Allan Josephson interviewed on CMDA's Christian Doctors Digest and also spoke at the Heritage Foundation on gender issues—to the outrage of some of his academic colleagues.

Walt Heyer, a man who for years identified as a woman, writes in defense of Professor Josephson after his subsequent forced departure from the University of Louisville:

"Dr. Allan Josephson, the Division Chief of Child and Adolescent Psychiatry and Psychology at the University of Louisville, has served as a distinguished professor in good standing for fifteen years. He scored perfect marks in 2014, 2015 and 2016 on his university reviews.

"But all of that changed in 2017, when he was quickly demoted. This year, the university did not renew Dr. Josephson’s contract, effectively firing him.

"Why? All because a few of his colleagues disagreed with his views on treatment protocols for gender dysphoria in children.

"I have heard Dr. Josephson speak. He is brilliant and likely would destroy his former colleagues in an intellectual face-to-face debate regarding the effectiveness and consequences of using affirmation, hormones, and surgery as treatment for childhood gender distress.

"Looking back on my life, I only wish Dr. Josephson would have been my doctor during my childhood."

Faith community and government leaders fight back

Reacting to the surge of anti-religious discrimination on campuses and beyond, the faith-based community and key political leaders are moving to protect freedoms of speech and religious exercise on campuses.

On March 21, the President issued an executive order, the key parts of which are as follows:

Sec. 2. Policy. It is the policy of the Federal Government to: (a)encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.

Sec. 3. Improving Free Inquiry on Campus. (a) To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

Sec. 6. General Provisions. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

While this executive order does not alter existing law or Constitutional provisions, it does send a warning shot across the bow of institutions that have denied students their First Amendment rights of speech, religious exercise or assembly. 

For academic administrators who fear the secular dogmatists but otherwise might be inclined to protect these freedoms, it provides them with "cover" to enforce freedom-protecting policies. For those who are not inclined to protect these freedoms (like school administrators who have discriminated against CMDA campus groups), the executive order should make them think twice about pursuing their discriminatory intentions at the risk of federal funding.

CMDA advocates for religious freedom

Education Secretary Betsy DeVos

Having attended off-the-record meetings with high-level Department of Justice officials and with Education Secretary Betsy DeVos, I can assure readers that the administration views protecting campus religious freedom as a priority concern. Secretary DeVos recently publicly announced that the federal government "will no longer enforce a restriction barring religious organizations from serving as contract providers of equitable services solely due to their religious affiliation."

Buttressing that decision is a landmark Supreme Court case (one of many court cases in which CMDA has participated), Trinity Lutheran Church of Columbia, Inc. v. Comer (137 S. Ct. 2012 (2017). The Court held in that case that under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit just because of their faith commitments.

At the end of the day, specific laws and the Constitution--and judges' interpretation of those--will determine the freedoms of faith-based student groups. Thankfully, CMDA has built strong relationships over the years with legal groups like Alliance Defending Freedom, Becket, and Christian Legal Society and others that gladly defend our campus groups and your religious freedoms.

Pray, speak out and prepare

What can you do?

Pray for the protection of our nation's historic commitment to religious freedom; elect and support government officials who will enforce protections; and speak out about instances of anti-religious discrimination.

Speaking out about discrimination promotes justice and helps protect others from discrimination. If you know of instances of discrimination against faith-based student groups and/or health professionals, please visit our Freedom2Care discrimination stories website to relate any incidents. (Alternatively, you may forward any stories and related documentation to me at JI@Freedom2Care.org.) We can help evaluate the situation and potential for legal counsel and/or defense.

Might you as a student or professional face backlash for speaking out? Count on it and prepare for it.

"You will be hated by all because of My name…"(Mark 13:13).

As believers preparing to stand firm in our faith convictions in the face of inevitable attacks, we do well to model Daniel, who "made up his mind that he would not defile himself" (Daniel 1:8) and Esther, who vowed, "if I perish, I perish” (Esther 4:16).

We do not know exactly how our tests of faith may come. For an increasing number of believers around the world, a test of faith means a literal gun to the head by an anti-Christian terrorist demanding apostasy, or a radical government edict targeting Christians. Others have faced more subtle yet still profound personal tests of fealty to Christ and His Kingdom principles—in conversations, interviews, patient encounters, investigations and legal actions.

However our tests come, may God grant us grace, courage and faithfulness to always and forever remain true to Christ in all we are and in all we say and do.

"But when they hand you over, do not worry about how or what you are to say; for it will be given you in that hour what you are to say" (Matthew 10:19).

"…but the one who endures to the end, he will be saved"(Mark 13:13).

"I will give to the one who thirsts from the spring of the water of life without cost.  He who overcomes will inherit these things, and I will be his God and he will be My son" (Revelation 21:6-7).

Resources:

Freedom2Care discrimination stories website

Freedom2Care legislative action website

HHS Conscience and Religious Freedom Division

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[i] Shakespeare's Macbeth (Act IV, Scene I).

Essay 15: Medicine needs challengers

History shows that the medical community too often tragically
has failed to police itself, leading to the loss of lives and to grave,
 irreversible injustices. Courageous conscientious objectors
can help challenge a failed system and end the injustice.

As noted in previous essays, a New England Journal of Medicine opinion piece entitled, "Physicians, Not Conscripts — Conscientious Objection in Health Care,"[1] by Obamacare architect Dr. Ezekiel Emanuel and University of Pennsylvania professor Ronit Stahl, advocates for limiting the exercise of conscience objections. The rare ethical issues for which they would countenance conscience freedom are only those issues for which the "healthcare community" has not yet developed a consensus:

"There is, however, a specific role for conscientious objection. It provides limited recourse in professionally contested interventions — that is, interventions about which the health care community is debating whether participation is appropriate or not. For example, physician-assisted suicide is currently legal in five states, and whether physicians should participate in it is at the center of a robust ethical debate among health care professionals. (Conversely, although abortion is politically and culturally contested, it is not medically controversial…)."[2]

If a Supreme Court decision were to unilaterally make assisted suicide on demand legal nationwide, as it did in 1973 with abortion on demand, presumably Emanuel and Stahl's grudging conscience allowances regarding assisted suicide would evaporate.