HHS claims 2015 Supreme Court decision makes rule obsolete. The truth is, as always, more complicated.
Marilyn Drew Necci | October 10, 2017
For a candidate who promised to “fight for” the LGBTQ community, Donald Trump has seemed dead set on rolling back many LGBTQ civil rights protections that were in place when he took office. His administration’s latest gambit has been the withdrawal by the Department of Health And Human Services (HHS) of a 2014 proposed rule protecting same-sex married couples from discrimination by medical service providers.
The rule, proposed in December 2014, was a response to the 2013 Windsor v. US Supreme Court decision, which abolished section 3 of the Defense Of Marriage Act and made it possible for the federal government to recognize same-sex marriages. At the time, same-sex marriages were not legal in all 50 states. The proposed rule would therefore require medical providers who receive funding from Medicare and Medicaid to treat same-sex married couples equally to opposite-sex married couples, regardless of the legality of same-sex marriage in a particular state at that time.
The 2015 Obergefell v. Hodges decision changed the situation for the better by ruling that the 14th Amendment requires states to allow same-sex marriage and to recognize same-sex marriages from other states. This effectively made marriage equality the law of the land, and it is this decision that HHS cited in their withdrawal of the proposed rule last week.
“In light of the Obergefell decision, we have decided to withdraw the December 2014 proposed rule,” HHS’s Center for Medicare & Medicaid Services wrote in a statement released October 4. “We believe that the Obergefell decision has addressed many of the concerns raised in the December 2014 proposed rule.”
Concerns still remain, however, as this decision by HHS could conceivably open the door for medical providers maintained by religious organizations or other anti-LGBTQ organizations to discriminate in treatment despite the legality of same-sex marriage. In a statement released October 5, Boston-based LGBTQ health care advocacy group Fenway Health quoted Supreme Court Justice Anthony Kennedy, from his 1996 majority opinion in the case of Romer v. Evans, which overturned Colorado’s anti-LGBTQ Amendment 2: “Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”
Fenway Health CEO Stephen L. Boswell then stated, “We have found that it is critically important to educate staff about basic rights that LGBT people have under the law, and the responsibilities all staff have toward patients or residents who are in same-sex relationships. A landmark Supreme Court ruling, regardless of how momentous it was, does not erase that need to educate healthcare providers and administrators.”
Boswell also cited six states–Indiana, Arkansas, North Carolina, Tennessee, Mississippi, and Florida–that currently allow discrimination against LGBTQ people on the basis of religious beliefs. Clearly, without the HHS rule in place, medical providers in these six states would have legal backing if challenged on discrimination towards non-heterosexual married couples–regardless of the legality of their marriage.
Worst yet, a bill given the depressingly Orwellian title of “First Amendment Defense Act” has been making the rounds through Congress since its proposal in 2015. This bill would prohibit the federal government from imposing any penalty on people who act “in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
Mississippi’s HB 1523, which took effect last Friday, has made this standard the law of the land in that state. Meanwhile, President Trump, who initially opposed the First Amendment Defense Act during his campaign for the presidency, stated on September 22, 2016 that he would sign it into law if it were passed by Congress.
Were such a law to pass at the federal level, the necessity for this HHS rule, which has now been struck down, would be even clearer. But even without the additional threat of the First Amendment Defense Act, the HHS rule definitely makes medical care less secure for LGBTQ people living in at least six states. And its specific removal opens the door for anti-LGBTQ medical providers in other states to test the limits of what discrimination they can engage in while still receiving federal funds.
So it’s pretty bleak news on the whole, folks. Who else needs to lie down right now?