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The Department of Health and Human Services (HHS) is working to rapidly implement protections for healthcare workers who don’t want to perform abortions or serve transgender people. That is despite a groundswell of public comments against the measure, which the agency is required to take into account before implementing new rules.

More than 200,000 people submitted comments against the Trump administration’s proposed “conscience protections,” according to a coalition of organizations that included LGBTQ organizations like the National Center for Transgender Equality and the Human Rights Campaign.

The protections, which were announced in January, would absolve workers from having to treat patients with HIV, allow physicians to deny trans people surgeries, and grant healthcare professionals medical licenses without learning to perform abortions. If enacted, these policies would allow widespread discrimation against LGBTQ people because the language is so broad, say advocates.

It also creates the Division of Conscience and Religious Freedom under the HHS Office of Civil Rights (OCR) to enforce the new policy.

Sources inside HHS indicate the agency has been moving expeditiously to implement the new guidelines since the 60-day public comment period closed on March 27. But HHS is required to consider all public comments when implementing such rules, and ignoring public input could leave the department vulnerable in a legal battle over the mandate, say experts.

Jocelyn Samuels, former director of OCR at HHS and current executive director at the LGBTQ think tank The Williams Institute says there are longstanding processes for weighing public comments.

“Those comments all count as part of the public record,” Samuels tells INTO. “So even if they are all summary and effectively follow boilerplate language, they are part of the public record that the agency is obligated to consider. And the level of concern that provoked 200,000 comments presumably in opposition to all or parts of the rule would be something that OCR would be expected to take into account.”

But the Trump administration has already made quick strides away from established processes on HHS rule implementation. Last December the agency came under intense scrutiny for withholding nearly all of the public comments on another proposed policy which took aim at trans people and abortions. Politico reported that HHS had published less than one percent of the comments (overwhelming supporting the administration’s stance) on that rule— and possibly violating transparency laws.

And HHS has also moved away from accurately counting the number of comments it receives. The agency currently reports just 72,410 public comments, despite the fact that advocacy groups submitted more than 200,000. That’s because organizations which submitted files with multiple comments have been uploaded as a single file and counted online as one comment.

That’s a marked difference from when HHS took public comment for non-discrimination protections as part of the Affordable Care Act in 2015. In that instance, entries with multiple public comments were noted as such and the comments in each document were tallied.

Consequently, even if the total online was lower due to documents containing multiple comments, the public could easily view how many submissions contained more than one comment. Additionally, the site reflected how many comments each of those submissions contained.

HHS declined to offer comments on-record.

To avoid having their thousands of comments counted as just “one,” some large nonprofits now use software that submits each comment individually. But many organizations still often submit public comments for thousands of people via a single document. Americans United, which was part of the coalition, submitted one entry that goes on for 945 pages and was counted by HHS online as a single comment.

The National Center for Transgender Equality (NCTE) logged 1,557 comments on this year’s conscience protections, according to Director of Policy Harper Jean Tobin. Like many organizations in the coalition that submitted the 200,000 comments, NCTE submitted theirs in lumped files.

“As far as I can tell the comments have all been posted, just not in a way that makes it reasonably possible to confirm a total number of signatories,” Tobin says.

The Human Rights Campaign is also tasked with combing through the Regulations.gov website to confirm its 4,697 comments were posted by HHS.

“These unique comments should be considered as individual, and HRC is in the process of comparing our records with those published by HHS,” said Robin Maril, HRC associate legal director. “It is critical that members of the public who provided individualized comments be counted and not considered a small fraction of ‘a single comment.’”

National Women’s Law Center Counsel Rachel Easter, which led the coalition to collect the 200,000 comments, says that regardless of counting issue, the groundswell against the measure should be grounds for pause from the administration before implementing the rules.

“Over 200,000 comments represents the outrage that folks feel about this harmful rule, and the way it would influence patience access to care, particularly for women and LGBTQ patients,” Easter claims.

Advocacy groups have indicated that a lawsuit is on the table if HHS adopts the new rules.

According to Samuels, comment review and then implementation typically takes several months.

“I don’t know whether this administration is continuing to adhere to the regular processes of review that the prior administration followed,” Samuels said. “But those are longstanding processes that overseen by the Office of Management and Budget that are important because at the end of the day, the government has to speak with one voice.”

Photo via ullstein bild/Getty Images


Kate Sosin Oeser
Kate Sosin Oeser is an award-winning trans reporter and former associate editor of Chicago's Windy City Times.