Sexism is deeply entrenched in every facet of our society, including the U.S. health care system. One of its many harmful manifestations is discrimination related to pregnancy or related conditions. Rooted in part in historical and present-day policies that aim to achieve reproductive control and subordination, particularly for Black, Indigenous, and other people of color (BIPOC) and people with disabilities, this form of sex-based and often intersectional health care discrimination is as pervasive as it is complex. This blog post, adapted from our recent Q&A, addresses how the Biden Administration’s proposed revisions to regulations implementing Section 1557, the nondiscrimination provision of the Affordable Care Act (ACA), could help combat related discrimination in our health care system.
Brief Background on Section 1557
Among other groundbreaking reforms, the ACA included a provision to alleviate discrimination in our health care system. Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, disability, age, or any combination thereof in certain health programs and activities. It incorporates preexisting federal civil rights laws, such as Title IX of the Education Amendments of 1972, and applies them to specified covered entities. It was the first federal law to prohibit sex discrimination in health care. It also prohibits intersectional discrimination, such as discrimination against a Black pregnant woman with Ehlers-Danlos Syndrome based on her race, sex, and disability combined.
Following an extensive public input process, in 2016, the Obama Administration finalized regulations implementing Section 1557 that defined sex discrimination to include:
discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy [i.e., abortion], or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.
Unfortunately, Franciscan Alliance, Inc., a Catholic health care system, other Catholic health care entities, and several states immediately challenged the rule’s prohibitions against sex discrimination related to abortion and gender identity. Before the rule could go into effect, the federal district court judge presiding over Franciscan Alliance v. Burwell issued a nationwide injunction to bar the U.S. Department of Health and Human Services (HHS) from enforcing these protections. In 2020, the Trump administration published a new Final Rule that gutted Section 1557’s implementing regulations, including by removing the definition of sex discrimination altogether. The following year, the court in Franciscan Alliance issued an order (recently upheld by the Fifth Circuit Court of Appeals) that enjoined HHS from interpreting or enforcing Section 1557’s gender identity and abortion protections against the plaintiffs. Now, HHS is revisiting these issues.
What the New Proposed Rule Says About Abortion and Other Pregnancy-Related Discrimination
On August 4, HHS published a new Proposed Rule on Section 1557 in the Federal Register. Among other changes, the 2022 Proposed Rule seeks to restore a regulatory definition of sex discrimination that includes:
discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; pregnancy or related conditions; sexual orientation; and gender identity.
In the preamble to the 2022 Proposed Rule, HHS notes that while the 2020 Final Rule did not define sex discrimination, it did prohibit discrimination on the grounds prohibited under Title IX. Title IX’s implementing regulations expressly prohibit discrimination related to pregnancy-related conditions, including childbirth, false pregnancy, termination of pregnancy, and recovery therefrom. These protections would also apply under the new Proposed Rule. Thus, while HHS does not explicitly name abortion in its proposed definition of sex discrimination, it affirmed that it would be covered.
The 2022 Proposed Rule also clarifies the scope of prohibited discrimination by restoring and improving upon other key regulations that the Trump Administration removed. For example, HHS proposes to restore and improve upon a regulation from the 2016 Final Rule on equal program on the basis of sex. The section clarifies covered entities’ obligations to provide equal access to health programs and activities, including services, without sex discrimination. HHS also proposes to restore and improve upon a regulation from the 2016 Final Rule that clarifies that Section 1557’s protections against discrimination on the basis of race, color, national origin, sex, age, and disability apply to health insurance and other health-related coverage.
The Proposed Rule would prohibit a range of discrimination related to pregnancy or related conditions. For example, a 2019 national study of over 2,700 women found that one in six reported mistreatment such as loss of autonomy; being shouted at, scolded, or threatened; and being ignored, refused, or receiving no response to requests for help during childbirth. Rates were highest for Indigenous (32.8 percent), Hispanic (25 percent), and Black women (22.5 percent). For years, some anti-abortion pharmacists have refused to fill prescriptions for emergency contraception based on a debunked claim that it “prevents implantation.” Some health insurers refuse to cover certain types of assisted reproduction, such as in vitro fertilization, for LGBTQI+ people. The Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization emboldened some health insurers, other health care entities, and providers to erect additional barriers to health services beyond abortions that can prevent, cause complications to, or end pregnancies. For example, methotrexate is a prescription drug frequently used to treat cancer or autoimmune conditions. It is also used to treat ectopic pregnancies. Following Dobbs, some pharmacies are refusing to or creating burdensome verification requirements before they will fill methotrexate prescriptions for people with disabilities because it could end a pregnancy, even if the individual with the prescription is not pregnant. Some health insurers have informed enrollees that they will no longer cover the drug, even in states where abortion remains legal. Section 1557 prohibits much of this discrimination, and HHS’ 2022 Proposed Rule makes that clearer.
How HHS Could Further Strengthen Its Approach
In addition to the proposed approaches described above, HHS seeks comment on whether it should add an additional provision specifically prohibiting discrimination based on pregnancy-related conditions as a form of sex-based discrimination. It also seeks comment on how the Supreme Court’s recent decision to overturn the constitutional right to abortion in Dobbs will impact Section 1557 implementation.
Because of the extent of abortion-related discrimination prior to and particularly following Dobbs, we believe that HHS should strengthen its definition of prohibited sex discrimination to include that which is related to “pregnancy or related conditions, including termination of pregnancy[.]” We also believe that HHS should enumerate specific forms of discrimination related to pregnancy or related conditions in its proposed regulations on sex discrimination in covered health programs and activities, as well as discrimination in health insurance and health-related coverage. We are concerned that related discrimination is so widespread, takes such varied forms, and is so volatile in the wake of Dobbs, that failing to include provisions on some of its most prevalent forms could undermine implementation.
Learn More and Get Involved
HHS is accepting comments on its Proposed Rule through October 3rd. If you are submitting comments on discrimination related to pregnancy or related conditions, including abortion, you can do so at the National Latina Institute for Reproductive Justice’s comment portal for reproductive health, rights, and justice advocates. If you are commenting on a range of health issues, you can do so using NHeLP’s comment portal for any health advocates. You can also submit comments at Regulations.gov.
Here are some additional resources that might be useful:
- Questions and Answers on the 2022 Proposed Rule Addressing Nondiscrimination Protections under the ACA’s Section 1557, our overview of the ways Section 1557 impacts various individuals, especially those who live at the intersection of multiple identities.
- Blog: What is Section 1557? An Introduction
- Blog: How the Proposed Changes to Section 1557 Affect Individuals with Limited English proficiency (LEP)
- Blog: How Changes to Section 1557 will Improve Health Care for LGBTQI+ People
- Blog: How Changes to Section 1557 will Impact Health Care for People with Disabilities
- Blog: How the Proposed Section 1557 Rule Addresses Discrimination Based on Sex Stereotypes
- Blog: How Proposed Changes to Section 1557 Strengthen Protections Related to Pregnancy or Related Conditions, Including Abortion.
