Trump expected to roll back LGBT protections in ObamaCare

Trump expected to roll back LGBT protections in ObamaCare
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The Trump administration appears poised to roll back ObamaCare’s anti-discrimination protections for transgender patients, a move that has activist groups girding for a fight.

A proposed rule from the Department of Health and Human Services is expected to be released in the coming weeks or months that opponents say would make it easier for doctors and hospitals to deny treatment to transgender patients and women who have had abortions.

The proposed rule is expected to roll back a controversial anti-discrimination provision buried within ObamaCare. 

Religious providers say they expect the Trump administration’s rule would merely reinforce their right not to provide treatment that's against their beliefs. 

Advocacy groups like the ACLU and Lambda Legal acknowledge they haven’t seen the proposed rule, but say administration officials have made their plans clear.

President Trump repeatedly pledged support for the LGBT community when he ran for office, including during his speech at the Republican convention.

But LGBT advocates say the president’s words increasingly ring hollow after his actions to revoke civil rights protections for gay and lesbian troops and ban transgender people from the military.

“We are deeply concerned,” said Sasha Buchert, a staff attorney at Lambda Legal. “DOJ has already shown its hand... [W]e stand ready to respond.”

“I don’t think they [HHS] are going to have an easy time … and we’ll make sure they hear every objection and justify what they’re doing,” said Joshua Block, a senior staff attorney at the ACLU, said.

A sweeping 2016 final rule from the Obama administration prohibited healthcare providers and insurers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity, or termination of pregnancy, among other conditions.

It also required doctors and hospitals to provide “medically necessary” services to transgender individuals, as long as those services were the same ones provided to others. 

That rule was challenged in court by a group of Christian providers called the Franciscan Alliance. They argue the rule forces insurers to pay for abortions and compels doctors to perform gender transition services, even if the services are against their medical judgment. 

The Alliance won that case, and a Texas district court judge issued a nationwide injunction blocking the gender identity and pregnancy termination provisions from taking effect. 

Trump’s HHS decided not to appeal the ruling. On Aug. 4, the Department of Justice, which is representing HHS in the lawsuit, said it was reviewing a draft proposed rule that had already cleared HHS.

It’s unclear when DOJ will complete the review. Once DOJ finishes, the final step before the rule’s release is a review by the Office of Management and Budget.

Buchert said she was surprised at how quickly HHS drafted the new proposal.

“I expected them to take more time in deliberating, in the same way the original rule was crafted, rather than crafting something internally and sending it over to DOJ,” she said. 

Once the proposal is released, there will be a public comment period.

Block said the ACLU is prepared for whenever the proposed rule is released.

“This has been something we’ve been raising alarm bells about for a while,” he said.

Lawyers familiar with the issue said the administration’s rule could build upon Burwell v. Hobby Lobby, in which the Supreme Court decided that “closely held” private businesses could be exempt from a contraception mandate if it violated their religious beliefs. 

“There’s definitely a parallel [to Hobby Lobby],” one attorney said. It’s yet another instance “where the Affordable Care Act and religious providers continue to butt heads.” 

The Log Cabin Republicans, which represent gay conservatives, said in an email the group “has always been opposed to discrimination against the LGBT community — in healthcare, or otherwise. We have made that position abundantly clear to HHS.”

The Becket Fund for Religious Liberty, which represents the Franciscan Alliance, told The Hill in an emailed statement “the old rule never had a legal leg to stand on. [T]he government has no business forcing doctors to violate their medical judgment and perform harmful gender transition procedures on children.”

The expected proposed rule would be the latest example of the Trump administration using regulations rather than legislation to change ObamaCare.

Trump highlighted religious objections to the contraceptive mandate in an executive order in May, and a leaked proposed rule from HHS would allow any organization to claim an exemption to the mandate, even if their objections aren’t faith-based.