Sacrificing health care on the altar of ideology

Medical doctors are among the most highly educated professionals on the planet. Why, then, would the federal government seek to curtail their ability to perform their jobs to the best of their ability? Knee-capping the scientific process in the name of highly contested “gender-affirming” care not only puts patients in a needlessly risky position; it forces physicians to choose between abiding by government edicts and following their own medical judgment.

The Centers for Medicare and Medicaid Services (CMS) has issued a proposed rule titled Nondiscrimination in Health Programs and Activities. It will amend the regulations that govern the Affordable Care Act. Not only does the proposal seek to capture significantly more providers within its control, but it would also force them to provide medical treatment they may disagree with.

One of the most widely contested areas of medicine covered by the proposed rule is gender-transition treatment, sometimes referred to as “gender-affirming care.” We’ve seen the Journal of the American Medical Association touting how gender-affirming surgery rescues transgender patients from mental health crises, versus the Society for Evidence-Based Gender Medicine cautioning that current standards for transitioning minor children should be closely evaluated. The only consensus on this topic is that each “side” vehemently disagrees with the other. The gross mishandling of these disagreements comes at the expense of patients.

The debate on gender-transition care has been so impassioned that there have been calls for the Department of Justice to investigate. Months ago, people lost their minds on Twitter when videos surfaced of Boston Children’s Hospital offering double mastectomies to minor girls. This story was met with threats of violence toward the participating doctors. On Oct. 3, the American Medical Association, the American Pediatric Association and the Children’s Hospital Association sent a letter to United States Attorney General Merrick Garland asking him to “investigate and prosecute all organizations, individuals, and entities responsible” for what the organizations call “an intentional campaign of disinformation.”

The proposed rule tries to capture over 1.4 million additional health care providers within its jurisdiction while undermining the First Amendment rights of all covered providers. Covered providers must treat all patients equally without regard to protected traits (including gender identity), and there are no exemptions built into the rule. If you refuse to prescribe gender-affirming treatments because it’s against your religion, you can be reported to the Office of Civil Rights (OCR). The same goes for physicians who believe puberty blockers and gender-transition surgery for children are not beneficial. If the OCR finds you are not exempt under an existing religious freedom or conflict of conscience rule, you will have violated the newly revised Section 1557.

Congress intended for Section 1557 to prohibit discrimination while allowing providers to maintain their First Amendment protections, not to mention their medical integrity. The stated goal of the proposed rule is to increase access to care and to address issues that lead to negative health outcomes. It suggests that it is scrapping existing religious exemption because CMS is worried that patients don’t have enough access to non-religious-connected health care providers. Does it follow that if you simply remove that exemption and require health care professionals to do things they fundamentally disagree with, you will achieve that goal?

No, it does not.

When the proposed rule is passed, many physicians are likely to walk. The science surrounding gender-transition care is anything but settled, so it should come as a surprise to no one that many health care providers are hesitant to go along with this new mandate at the potential expense of their patients. When making decisions about gender-related health care, which have permanent life-altering implications, one would hope that patients would seek a second opinion. When this proposed rule goes into effect, second opinions will no longer be an option.

American physicians tremendously value their freedom of religious belief. Science, by its nature, cannot provide answers to the most important ethical questions. 

Many providers will sooner opt-out of treating Medicare patients to maintain their constitutional and personal freedoms. Some will choose to leave the federal health care system altogether. According to a report released by the Association of American Medical Colleges, the U.S. faces a projected shortage of between 37,800 and 124,000 physicians within 12 years. We cannot afford to lose more physicians for the sake of ideology.

Federal health care patients will be the ones who suffer under the new rule. If they seek gender-transition services, the only providers they will be able to access will be all-in on gender-affirming care and thus will be unable to suggest alternative treatment options even if they would be most effective. If it turns out that removing healthy organs in the name of gender identity equality was not the right call, we will have CMS to blame.

Leigh Ann O’Neill is a staff attorney at the Foundation Against Intolerance & Racism (FAIR). Reid Newton is a legal analyst at FAIR.