Government-Sanctioned Health Care Discrimination During a Pandemic: Legally Nonsensical and Morally Bereft

By Charles Binkley and David S. Kemp

The Trump administration recently announced a rule change that would effectively remove nondiscrimination protections for LGBTQ people in health care and health insurance. Section 1557 of the Affordable Care Act (ACA) prohibits discrimination in the provision of health care on the basis of “race, color, national origin, sex, age or disability.” The Obama administration in 2016 clarified that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity. In effect the Trump administration’s policy change allows health care providers and insurers to turn away entire classes of people based solely on their sexual orientation or gender identity. Importantly, under the new rule, a provider can deny any form of treatment, not just treatment associated with the individual’s sexual orientation or gender identity.

By focusing discrimination on a group of people and allowing physicians, hospitals, insurance companies, and health care organizations to refuse medical treatment and services to a class of people, the Trump administration has violated several moral foundations of medicine.

First, autonomy is broadly understood as an individual’s right to self-determination. Patients have a right to decline recommended treatments and to request procedures and medications from providers. What governs the response to such requests is the agency of providers to judge whether such requests are medically beneficial and not harmful to the patient. These judgments are guided both by medical knowledge and the moral demand that the provider do good and avoid harm.

Most of a physician’s tools may be used for benefit or harm, but the physician has sworn an oath to direct every treatment toward the good of the patient. The calculus of benefit and harm can never be based on the provider’s moral assessment, but only that of science and the values of the individual patient. To do otherwise betrays a physician’s sacred oath. That the administration would allow this is a violation of its duty to serve its people.

It is essential not to conflate the right to refuse treatment to an entire class of people with the right to refuse to perform certain procedures or treatments on the basis of conscience. The former is a blanket right to discriminate, which is immoral; the latter is a recognition that some procedures or treatments, not classes of people, violate the beliefs of some physicians. For instance, conscience has been recognized as the basis for allowing some physicians to opt out of performing elective abortions.

The caveat to any such conscience-based exemption is that abstaining from acting must not cause harm to the patient. When there is conflict between the provider’s conscience and the safety of the patient, the patient always comes first.

Justice in medicine requires that there be one standard of care, and it must be applied equitably. Allowing discrimination based on characteristics that are inconsequential to medical decision making risks allowing further discrimination on other irrelevant characteristics. We must not forget that medicine is still struggling to rectify its long history of discrimination against African Americans.

This rule is particularly poignant in the setting of a pandemic where decisions are being made about the allocation of limited resources. Although under the Trump administration’s policy a physician would not be legally liable for making an allocation decision on the basis of sexual orientation or gender identity, the physician would nonetheless be bereft of moral justification. Moral agents have traditionally sought specifically to protect the rights of vulnerable populations. For the institution of medicine to assume a greater defense of the dignity of human persons than the government does is outrageous.

A recent decision by the U.S. Supreme Court effectively eviscerates the administration’s discriminatory rule. In Bostock v. Clayton County, a 6-3 majority of the Court held that under Title VII of the Civil Rights Act of 1964, an employer may not discriminate against an employee on the basis of sexual orientation or gender identity. That statute expressly prohibits discrimination on the basis of five characteristics: race, color, religion, national origin, and sex. The Court reasoned that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” As Section 1557 of the ACA uses the same “because of sex” language that Title VII does, the administration’s rule purporting to exclude sexual orientation and gender identity from the list of protections that include sex is legally nonsensical.

Even so, those responsible for the rule must shoulder the moral culpability of seeking to undermine core principles of medicine. If we do not hold accountable those who would deny our fellow humans a right of basic dignity, we lose a part of our own humanity.

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Authors: Charles E. Binkley*, David S. Kemp**


* Markkula Center for Applied Ethics at Santa Clara University

** UC Berkeley School of Law

Competing interests: None.

Social media accounts: @CharlesBinkley @davidskemp


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