Secretary Alex Azar
Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue SW., Room 445-G
Washington, DC 20201
RE: Proposed Rule on Protecting Statutory Conscience Rights in Health Care; Delegations of Authority
Dear Secretary Azar,
Human Rights Watch opposes the Proposed Rule on Protecting Statutory Conscience Rights in Health Care; Delegations of Authority (83 Fed. Reg. 3880). The proposed rule would dramatically expand the discretion that religious or moral objectors have to refuse care in healthcare settings without any meaningful safeguards to ensure that the rights and health of others are protected. The rule would function not only as a shield for people asserting objections on religious or moral grounds but also as a sword that permits them to withhold care from women; lesbian, gay, bisexual, and transgender (LGBT) people; and others.
The proposed rule fails to appreciate the significant barriers that women, LGBT people, and others already face when attempting to access health care that meets their needs, and the likelihood that the rule would exacerbate those barriers and prevent people from accessing care. The rule codifies vague, open-ended definitions that would permit unfettered discrimination in healthcare settings. And it breaks from a long tradition of religious or moral exemptions under domestic and international law by providing blanket protection for religious exercise without any mechanism to ensure that the rights and health of others are not jeopardized as a result.
- Women and LGBT People Already Face Barriers to Care
Under Executive Order 13563, the Department of Health and Human Services may only propose a rule where it has made a reasoned determination that the rule’s benefits outweigh its costs and it is tailored to impose “the least burden on society.” However, the proposed rule fails to incorporate an understanding of the barriers that women and LGBT people already face in accessing care and the ways in which the proposed rule could exacerbate health disparities.
Women face significant barriers in access to health care, particularly reproductive health services. Despite significant increases in the number of women with health insurance as a result of the Affordable Care Act, women are less likely than men to be insured through an employer and more likely to be insured as a dependent of another family member. This leaves women more vulnerable to a loss of insurance if they become widowed or divorced, or if their spouses lose insurance. One in ten women have no health insurance, and uninsured women have poorer access to care and lower rates of use of important preventative services, such as mammograms, pap smears, and contraceptive services. Low-income women, women of color, and immigrant women are at greatest risk of being uninsured. An estimated 1.1 million women in states that have not expanded Medicaid under the Affordable Care Act fall into the “coverage gap” between being eligible for Medicaid and qualifying for subsidies for private insurance. Another 1.5 million undocumented women are uninsured and ineligible for either Medicaid or private insurance coverage.
For women who do have health insurance, the Affordable Care Act prohibits discrimination by healthcare and insurance providers on the basis of sex, and requires coverage for key women’s health services, such as preventative screenings for breast and cervical cancer, contraception, maternity care, and breastfeeding support services. The proposed rule fails to indicate how the anti-discrimination and substantive coverage provisions of the ACA would be balanced against claims for religious or moral exemptions. This creates a dangerous ambiguity that could undermine the ACA’s anti-discrimination provisions.
There are also significant challenges in access to constitutionally-protected abortion services, particularly for low-income women and women of color. Poor women are five times more likely than higher income women to have an unintended pregnancy, and rates of unintended pregnancy among women of color are more than twice the rates for white women; the federal ban on funding for Medicaid coverage for abortions contributes significantly to these disparities. Current US law provides extensive grounds for religious and conscience-based objection to abortion and abortion related services, including the Church Amendment, the Coats-Snowe Amendment, the Weldon Amendment, the Medicaid or Medicare Conscience Protections, and the Affordable Care Act Conscience and Religious Exemption Laws. Rule proponents have produced no compelling evidence of the necessity of supplementing these provisions. Furthermore, the proposed rule may risk further limiting access to abortion services and exacerbate existing racial and socio-economic health disparities. It does not appear that these possible harms have been seriously considered in formulating the rule.
LGBT people also face significant disparities in access to health care, with LGBT individuals twice as likely to be uninsured than their non-LGBT counterparts. Moreover, discrimination in healthcare settings is problematic; in 2010, more than half of LGBT people surveyed by Lambda Legal reported a discriminatory experience while seeking healthcare services. Transgender individuals in particular experience high levels of discrimination. In a 2017 survey, nearly 1 in 3 reported denial of health care on the basis of their gender identity.
Congress has not enacted explicit federal non-discrimination protections for LGBT people, and fewer than half of the states offer such protection. In this environment, broad and vaguely worded religious exemption laws threaten to increase discrimination on the basis of sexual orientation and gender identity. In numerous states that have recently passed religious exemption laws without adequate protection against discrimination, Human Rights Watch has documented discriminatory denials of health care and services to LGBT people. According to Lambda Legal: “In the health care field, where patients are especially vulnerable, religion-based harassment and refusals of medically necessary care have been a persistent, profoundly harmful problem.” People living with HIV also continue to face discrimination in healthcare settings; as recently as December 2017 the Department of Justice reached a settlement under the Americans with Disabilities Act against a surgeon in Ohio who refused care on the basis of the claimant’s HIV status. In many of the countries where HHS implements global HIV/AIDS programs, many of the patients served already face numerous barriers to care, including a broad and harmful refusal provision contained within the statute governing such programs. The proposed rule lacks consideration of existing anti-LGBT and HIV-related discrimination in health care and contains no mechanism for avoiding or reducing potential harm.
The complaints received by the Office of Civil Rights (OCR) suggest that civil rights violations in health care are far more common than religious liberty violations. Between November 2016 and January 2018, OCR received 34 complaints alleging violations of federal laws permitting religious refusals; from the fall of 2016 to the fall of 2017, OCR received more than 30,000 complaints alleging HIPAA or civil rights violations. While Human Rights Watch recognizes that violations of religious freedom are a significant and valid concern, HHS has not demonstrated that existing safeguards are insufficient to protect religious objectors; that the benefits of broader exemptions outweigh the costs they will impose; or that the proposed rule is tailored to impose the least burden on society.
As detailed below, Human Rights Watch believes the proposed rule would embolden providers to discriminate against women, LGBT people, and others based on their religious beliefs. Worse, it would do so at a time when HHS has weakened access to contraceptive services under the Affordable Care Act (ACA); removed online resources for lesbian and bisexual women; and intends to roll back protections for transgender people under Section 1557 of the ACA.
- The Proposed Rule Represents a Troubling Expansion of the Scope of Religious and Moral Exemptions
While the proposed rule purports to clarify federal law, it redefines key terms in ways that would significantly broaden the scope of religious and moral exemptions. In the absence of any protections that might mitigate harm, these redefinitions risk greatly exacerbating the discrimination and barriers to access women and LGBT people already experience. Among the definitions that give cause for concern are the following:
- The proposed rule broadens the definition of the term “entity” to encompass the definition of “person” in 1 U.S.C. 1, which includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
- The proposed rule broadens the definition of the term “health care entity” with an illustrative, non-exhaustive list of providers, leaving little clarity about the scope of the exemptions that could be claimed under the proposed rule and providing little guidance for providers and patients alike.
- The proposed rule broadens what it means to “assist in the performance of” a healthcare service, permitting anyone with an “articulable connection” to the healthcare service they consider objectionable – instead of a “direct connection” – to decline to participate. The expanded definition would allow objectors, including administrative or technical personnel, to refuse to perform a task because they can identify some connection, no matter how attenuated, to a service they consider objectionable. For example, a hospital room scheduler could refuse to book a room or a technician could refuse to clean surgical instruments for procedures they consider objectionable.
- The proposed rule allows exemptions from a broad range of referral requirements, defining “referral” or “refer for” to include the provision of basic information about a healthcare service, activity, or procedure.
At the same time, the proposed rule does not define key terms like “religious beliefs,” “moral convictions,” or “moral or religious grounds.” This gives objectors virtually unfettered discretion to couch any refusal in moral or religious terms.
These drastic expansions of existing law could come at a cost to patients, and the rule fails to consider this. Human Rights Watch research has documented how recent religious exemptions jeopardize the health of women and LGBT people. In some instances, these exemptions are invoked to justify discrimination and refuse service to individuals seeking care. Even before refusals occur, however, sweeping religious or moral exemptions put women and LGBT people on notice that they may be turned away or discriminated against, deterring them from seeking care at all.
- The Proposed Rule Lacks Safeguards to Protect Patients
The prevalence of discrimination against women and LGBT people in health care and the sheer breadth of the proposed rule put the rights of patients at risk. These harms are exacerbated by the lack of safeguards in the proposed rule, which breaks from the US’ traditional approach towards religious exemptions.
The proposed rule fails to account for the adverse impact that religious or moral refusals may have on the state’s interests or the rights of others – something that has generally been a core element of religious and moral exemptions under US law.
Under international law, religious freedom protections have distinguished between the freedom of religious belief, which is inviolable, and the freedom of religious exercise, which may be limited when it infringes upon the rights of others or the state’s interests. While federal law frequently collapses the distinction between religious belief and religious exercise, exemptions have typically contained some mechanism to balance protections for conscience with the state’s interests, including its protection of the rights of other people. The proposed rule not only fails to distinguish between belief and exercise, but does not give any explicit weight whatsoever to the rights of others or state interests.
In addition, the proposed rule does not include safeguards to minimize the harm inflicted on those who are denied service or turned away. It does not require healthcare facilities to ensure that, when a provider has an objection, a non-objecting provider is available to offer the service in their stead. It does not require healthcare facilities to refer patients to another healthcare facility where they can obtain the treatment or services they seek or provide information about their options.
- Rights at Stake
- Right to Health
Under international law, everyone has the right “to the enjoyment of the highest attainable standard of physical and mental health” without discrimination on the basis of sex, age, or other prohibited grounds. The right to health is also inextricably linked to provisions on the right to life and the right to non-discrimination that are included in the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified.
The Committee on Economic, Social and Cultural Rights, the body charged with interpreting and monitoring the implementation of the ICESCR, has identified four essential components to the right to health: availability, accessibility, acceptability and quality. Even though the US is not a party to the ICESCR, the Committee’s interpretation represents a useful and authoritative guide to the steps governments should take to realize and protect the right to health and other human rights. The proposed rule will reduce the availability and accessibility of healthcare services, particularly sexual and reproductive healthcare services, in communities across the US.
Sexual and reproductive health and rights are addressed specifically in a number of international treaties and other authoritative sources. Article 12 of the Convention on the Elimination of Discrimination Against Women (CEDAW) provides that “[s]tates parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services […].” The US has signed, but not ratified, CEDAW. The CEDAW Committee in its General Recommendation 24 affirmed states parties’ obligation to respect women’s access to reproductive health services and to “refrain from obstructing action taken by women in pursuit of their health goals.” As with the ICESCR, even though the US is not a party to CEDAW, the Committee’s interpretation represents a useful and authoritative guide to the steps governments should take to realize and protect the range of human rights addressed under the Convention.
- Right to Information
The right to information is set forth in numerous human rights treaties. CEDAW asserts that states should provide women “[t]he same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.” The ICESCR obliges state parties to provide complete and accurate information necessary for the protection and promotion of rights, including the right to health. Furthermore, the CESCR Committee in its General Comment 14 has stated that the right to health includes the right to health-related education and information, including on sexual and reproductive health. The CEDAW Committee has also noted that, under article 10(h) of CEDAW, women must have access to information about contraceptive measures, sex education and family-planning services in order to make informed decisions.
The proposed rule expands existing protections to allow providers to decline to provide information they deem morally or religiously objectionable to their patients, while doing nothing to ensure that those patients have reliable alternative routes to secure that information. Denying medically accurate information to patients leaves them in the dark about their treatment options and prevents them from making an informed choice about which options to pursue.
- The Right to Non-Discrimination
Non-discrimination is a central principle of international human rights law. As a party to the ICCPR, the US is obligated to guarantee effective protection against discrimination, including discrimination based on sex, sexual orientation, and gender identity. CEDAW mandates that state parties take action to “eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to healthcare services.”
The UN Human Rights Committee, which provides authoritative guidance on the ICCPR, has clarified that the freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women, or racial and religious minorities. It has urged states considering restrictions on the manifestation of religion or belief to “proceed from the need to protect all rights guaranteed under the Covenant, including the right to equality and non-discrimination.”
As Human Rights Watch has documented, recent religious exemptions at the state level have emboldened service providers to discriminate against women and LGBT people. Indeed, there is substantial evidence that permitting such discrimination is the primary motivation for some of these exemptions. By granting virtually unfettered discretion to religious objectors who refuse to meet the healthcare needs of women and LGBT people – and declining to provide any safeguards to mitigate the harm that such refusals inflict – the proposed rule likely fails to satisfy the US’s obligations under international law.
While religious freedom is an important human right, the proposed rule fails to advance that right in a responsible and rights-respecting manner. It fails to appreciate the effectiveness of existing protections for conscience and the worrying prevalence of discrimination against women and LGBT people in the United States. It broadens existing protections for conscience in ways that jeopardize access to healthcare and risk exacerbating discrimination and mistreatment against women and LGBT people. It gives little to no regard to those whose rights are jeopardized by blanket religious exemptions and breaks with a long tradition of religious exemptions that seek to ensure that the rights of all are respected. In these ways, it jeopardizes the right to health, the right to information, and the principle of non-discrimination under international law. For all of these reasons, Human Rights Watch calls on HHS to reject the proposed rule.
Senior Researcher, Women’s Rights Division
Human Rights Watch
Senior Researcher, Health and Human Rights Division
Human Rights Watch
Researcher, LGBT Rights Program
Human Rights Watch
 Improving Regulation and Regulatory Review, Executive Order 13563 (Jan. 18, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/01/18/executi... (accessed March 26, 2018).
 Henry J. Kaiser Family Foundation, “Women’s Health Insurance Coverage,” https://www.kff.org/womens-health-policy/fact-sheet/womens-health-insura... (accessed March 26, 2018).
 Usha Ranji, Alina Salganicoff, Laurie Sobel & Caroline Rosenzweig, “Ten Ways That the House American Health Care Act Could Affect Women,” Henry J. Kaiser Family Foundation, May 8, 2017, https://www.kff.org/womens-health-policy/issue-brief/ten-ways-that-the-h... (accessed March 26, 2018).
 American Public Health Association, “Restricted Access to Abortion Violates Human Rights, Precludes Reproductive Justice, and Demands Public Health Intervention,” November 3, 2015, https://www.apha.org/policies-and-advocacy/public-health-policy-statemen... (accessed March 26, 2018).
 42 USC 300-a(7); 42 USC 238(n); Consolidated Appropriations Act, 2017, Pub. L. 115-31, Div. H, Tit. V, sec. 507(d); 42 U.S.C. 18023(c)(2)(A)(i)-(iii), (b)(1)(A) and (b)(4); 42 U.S.C. 1395w-22(j)(3)(B) and 1396u-2(b)(3)(B).
 Kellan Baker and Laura E. Durso, “Why Repealing the Affordable Care Act is Bad Medicine for LGBT Communities,” Center for American Progress, March 22, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/03/22/428970/repe... (accessed March 26, 2017).
 Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination Against LGBT People and People with HIV, 2010, https://www.lambdalegal.org/publications/when-health-care-isnt-caring (accessed March 26, 2018).
 Shabab Ahmed Mirza & Caitlin Rooney, “Discrimination Prevents LGBTQ People from Accessing Health Care,” Center for American Progress, January 18, 2018, https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/disc... (accessed March 26, 2018).
 Human Rights Watch, “All We Want is Equality”: Religious Exemptions and Discrimination against LGBT People in the United States, February 19, 2018, https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exe....
 Lambda Legal, “Trump Administration Plan to Expand Religious Refusal Rights of Health Professionals: Legal Issues and Concerns,” https://www.lambdalegal.org/health-care-analysis (accessed March 26, 2018).
 Settlement Agreement between the United States of America and Advanced Plastic Surgery Solutions under the Americans with Disabilities Act, December 6, 2017, https://www.ada.gov/adv_plastic_surgery_sa.html (accessed March 26, 2018).
 See Henry J. Kaiser Family Foundation, “The Mexico City Policy: An Explainer,” June 1, 2017, https://www.kff.org/global-health-policy/fact-sheet/mexico-city-policy-e... (accessed March 26, 2018).
 US Department of Health and Human Services, “FY 2019 Budget in Brief,” February 19, 2018, https://www.hhs.gov/sites/default/files/fy-2019-budget-in-brief.pdf (accessed March 26, 2018) p. 124.
 Human Rights Watch, “Human Rights Watch Comment on Interim Final Rule on Moral Exemptions and Accommodations Under the ACA,” December 5, 2017, https://www.hrw.org/news/2017/12/05/human-rights-watch-comment-interim-f....
 Dan Diamond, “HHS Strips Lesbian, Bisexual Health Content from Women’s Health Website,” Politico, March 21, 2018, https://www.politico.com/story/2018/03/21/hhs-strips-lesbian-bisexual-he... (accessed March 26, 2018).
 National Center for Transgender Equality, “Trump Administration Says It Will Try to Legalize Anti-Transgender Discrimination in Health Care,” May 2, 2017, https://transequality.org/press/releases/trump-administration-says-it-will-try-to-legalize-anti-transgender-discrimination-in (accessed March 26, 2018).
 Rule at 56. For the broader definition of “person,” see 1 U.S.C. 1.
 Rule at 58-59.
 Rule at 52.
 Rule at 63-66.
 Human Rights Watch, “All We Want is Equality”: Religious Exemptions and Discrimination against LGBT People in the United States, February 19, 2018, https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exe....
 See, for example, Title VII, which requires employers to reasonably accommodate employees’ religious beliefs – including in healthcare settings – unless the accommodation would impose an ‘undue hardship’ on the employer. The Religious Freedom Restoration Act, which prohibits the government from substantially burdening religious exercise but allows such restrictions where the burden is the least restrictive means necessary to advance a compelling governmental interest. 42 U.S.C. 2000bb et seq.
 The US has signed, but not ratified, the ICESCR and as such is not legally bound by its provisions. It does, however, have an obligation not to take actions that would undermine the object and purpose of the treaty. International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12(1).
 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 10.
 Committee on Economic, Social and Cultural Rights (CESCR), “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights,” General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), http://www.refworld.org/pdfid/4538838d0.pdf (accessed March 26, 2018), para. 12.
 In the 1994 Cairo Programme of Action on Population and Development, delegates from governments around the world pledged to eliminate all practices that discriminate against women and to assist women to “establish and realize their rights, including those that relate to reproductive and sexual health.” In the 1995 Beijing Declaration and Platform for Action, delegates from governments around the world recognized that women’s human rights include their right to have control over and decide freely and responsibly on matters related to their sexuality free of coercion, discrimination, and violence. See United Nations, Programme of Action of the United Nations International Conference on Population and Development (New York: United Nations Publications, 1994), A/CONF.171/13, 18 October 1994, para. 4.4(c) and United Nations, Beijing Declaration and Platform for Action (New York: United Nations Publications, 1995), A/CONF.177/20, 17 October 1995, para. 223.
 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, art. 12.
 CEDAW Committee, “General Recommendation 24, Women and Health (Article 12),” U.N. Doc. No. A/54/38/Rev.1 (1999), para. 14.
 ICCPR, art. 19(2); American Convention on Human Rights, art. 13(1). See also Inter-American Court, Claude-Reyes and others Case, Judgment of September 19, 2006 Inter-Am Ct.H.R., Series C. No. 151, para. 264.
 CEDAW, art. 16(e).
 See ICESCR, article 2(2). See also CESCR, “General Comment No. 14, The Right to the Highest Attainable Standard of Health,” U.N. Doc. E/C.12/2000/4 (2000), paras. 12(b), 18, 19.
 Ibid., para. 11.
 CEDAW Committee, “General Recommendation no. 21, on equality in marriage and family relations,” HRI/GEN/1/Rev.9 (Vol. II), para. 22.
 International protections for the right to non-discrimination include: ICCPR, arts. 2, 4, 26; ICESCR art.2(2); CEDAW, art. 2; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on October 21, 1994, art. 5; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003., art. 1(1), art. 7.
 ICCPR, art. 26.
 CEDAW, art. 12.
 See Human Rights Committee, General Comment 28, "Article 3 (The Equality of Rights Between Men and Women)," March 29, 2000, UN Doc. CCPR/C/21/Rev.1/Add.10, para. 21 ("Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience, and religion."); Human Rights Committee, General Comment 22, "Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," 1994, UN Doc. HRI/GEN/1/Rev.1, para. 2 ("The committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community."); Ibid., at 7 (noting that "no manifestation of religion or belief may amount to … advocacy of national, racial, or religious hatred that constitutes incitement to discrimination" and that "States parties are under the obligation to enact laws to prohibit such acts.").
 Human Rights Committee, General Comment 22, "Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," para. 8.
 Human Rights Watch, “All We Want is Equality”: Religious Exemptions and Discrimination against LGBT People in the United States, February 19, 2018, https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exe... Letter from Sen. Patty Murray to Secretary Alex Azar on March 23, 2018, https://twitter.com/dominicholden/status/977276347532890114.