On January 18th, 2018, the Trump administration announced the addition of the Division of Conscience and Religious Freedom to the Department of Health and Human Services. This division was created in order to”protect doctors, nurses and other health care workers who refuse to take part in procedures like abortion or treat certain people because of moral or religious objections.” This announcement brings the debate over religious freedom vs other civil rights back to the forefront of many people’s minds.
What is the History of Religious Freedom and Reproductive Health?
The tension between religious freedom and professional responsibilities is nothing new to our culture and has been felt beyond just the medical community. We’re all aware of religious freedom civil rights conflicts like the bakery case in Colorado, which has reached all the way to the Supreme Court, for example. But for this post, I’m going to look at just health care, considering reproductive health issues in particular. The Health and Human Services Department outlines the “Federal Statutory Health Care Provider Conscience Protections” that have been put in place prior to the designation of this department on their website. Below is a brief coverage, to read it all go here.
The Church Amendments, enacted in the 1970s, protect conscience rights of individuals and entities that object to performing or assisting with abortions or sterilization procedures. The provision prohibits any entity that receives a grant, contract or loan from discriminating against any physician or other health care personnel because the individual either performed or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions. Moral convictions are defined as a subjective assessment that one’s attitude about a specific issue or situation is associated with one’s core moral beliefs and fundamental sense of right or wrong.
Public Health Service Act § 245 prohibits the federal government, or any state or local government receiving federal financial assistance, from discriminating against any health care entity on the basis that the entity:
- Refuses to undergo training in the performance of induced abortions, require or provide such training, perform abortions or provide referrals for training or abortions
- Refuses to make arrangements for these activities
- Attends (or attended) a post-graduate physician training program that does not (or did not) perform induced abortions or require, provide or refer training in the performance of induced abortions
The Weldon Amendment, originally passed as part of the HHS appropriation, provides that “[n]one of the funds made available in this Act may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” It also defines “health care entity” to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”
The Affordable Care Act (Pub. L. No. 111-148) includes health care provider conscience protections within the health insurance Exchange program. “No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of or refer for abortions.”
Additionally, Section 1553 of the Affordable Care Act includes conscience protections regarding assisted suicide. “The Federal Government, and any State or local government or health care provider that receives Federal financial assistance or any health plan created under this Act (or under an amendment), may not subject an individual or institutional health care entity to discrimination on the basis that the entity does not provide any health care item or service for the purpose of causing, or assisting in causing, the death of any individual, such as by assisted suicide, euthanasia or mercy killing.”
It is important to many people that religious and moral beliefs be respected about life and death issues like these. Seeing a potential for these laws to be used outside of the scope discussed above (ie. only pertaining to abortion and assisted suicides), the Obama administration enacted a policy which barred health care workers from refusing to treat transgender individuals and people who have had or are seeking abortions. This policy was challenged in court by the Franciscan Alliance, a Christian healthcare organization, and a judge blocked its enforcement in 2016 as the case played out in court.
The Office for Civil Rights (OCR) has been receiving and investigating discrimination complaints under the Nondiscrimination in Health Programs and Activities Proposed Rule Section 1557 of the Affordable Care Act. Under the Obama administration, this rule not only prohibited discrimination based race, color, national origin, sex, age, and disability – but specifically prohibited anti-transgender discrimination in sex discrimination.
What Are the Arguments on Both Sides of this Issue?
Most people understand the reason this type of protection exists but also the possibility that it will put people’s lives in danger. First, let’s look at people who feel the protections are the more important side of the equation. The new rules were announced just before 2018’s March for Life. This march is an annual gathering marking the anniversary of Roe v. Wade. Republicans have typically timed votes on anti-abortion legislation around the nation’s largest anti-abortion rally. Last year, Pence spoke at the march and this year he introduced Trump (making him the first sitting president to address the rally) stating he would “restore the sanctity of life to the center of American law.” Here are a couple of Trump’s anti-abortion remarks:
“As you all know, Roe v. Wade has resulted in some of the most permissive abortion laws anywhere in the world” – Criticizing the 1973 Supreme Court with Roe v. Wade decision affirming a woman’s right to an abortion at most stages of a pregnancy.
“The United States, it’s one of only seven countries to allow elective late-term abortions, along with China, North Korea, and others.” –many other countries allow therapeutic late-term abortion—usually for health concerns related to the fetus. Fetal health concerns are the most common reason for the 1.3% of US abortions that happen at late term.
During the announcement of the new HHS division, Roger Severino, the director of HHS’s Office for Civil Rights, stated “Never forget that religious freedom is a primary freedom, that it is a civil right that deserves enforcement and respect.” Currently, the HHS has made it clear it will not allow gender discrimination that is banned by federal law. The issue with this is as of right now, all of the applicable federal sex discrimination laws do not include gender identity and sexual orientation (LGBTQ people) in the definition of gender.
In contrast to this point of view, the number one fear for opponents to conscious protections is they could expand to allow health workers to refuse to treat people not only because they are seeking an abortion or assisted suicide, but because they are gay, lesbian or transgender people. Louise Melling, deputy legal director at the American Civil Liberties Union, stated in an interview, “This administration has taken a very expansive view of religious liberty. It understands religious liberty to override anti-discrimination principles.” Her fears are not unfounded, there are many prominent examples of medical providers refusing care on religious grounds: nurses who don’t want to provide post-operative care to women who have had an abortion, pediatrician who decline to see a child because their parents are lesbians or fertility doctors who don’t want to provide services to gay couples.
Other religious, pro-choice groups believe the timing of the announcement of this new division (close to the 2018 March for Life) is meant to further pro-life goals including enabling more pro-life policies and legislation. Sara Hutchinson Ratcliffe, Vice President of Catholics for Choice, issued the following statement in response to the announcement:
This decision— not so coincidentally timed around the March for Life— is a cheap attempt by President Trump to pander to ultraconservative special interests that got him into power. Time and time again, we have seen this administration radically redefine religious freedom to impose one set of ultraconservative beliefs on all Americans.
As Catholics, we believe everyone has a God-given right to follow their conscience when making decisions about when and whether to have children. Granting conscience protection to institutions perverts conscience. Institutions cannot have a conscience— allowing them to object to providing care leaves women and other marginalized groups holding the short-end of the stick. We must balance the consciences of providers with the consciences of patients and their right to compassionate care, especially those patients with fewer resources and care options.
Advocates for LGBTQ patients are warning this policy shift may well worsen the stigmas and discrimination they are currently trying to overcome. Many legal organizations, like the ACLU, and patient advocacy groups have promised to challenge the HHS if the issue surrounding the possibility of discrimination criteria including patient’s gender or gender expression is not resolved. Melling, of the ACLU, went on to say,
“No one should be turned away when they need medical help. No one should be humiliated, demeaned, and left to suffer because of who they are or the health care they need. Should the administration choose to move forward to implement a discriminatory policy, we will see them in court.”
Harper Jean Tobin, from the National Center for Transgender Equality, stated, “This is the use of religion to hurt people because you disapprove of who they are. Any rule that grants a license to discriminate would be a disgrace and a mockery of the principle of religious freedom we all cherish.”
The Bills.
Beyond the new Division of the HHS, there are already several bills introduced that have to do with this issue. First, In Congress, S301 and HR644, known as the Conscience Protection Act of 2017, aim to protect health-care professionals who don’t want to take part in abortions because of their personal objections. It allows health care providers, like nurses and doctors, to sue if they’re coerced into participating in abortions or if they face discrimination at work for refusing to do so. As discussed above, currently it is prohibited to discriminate based on refusal to participate in abortions, but doesn’t allow for those who say they’re discriminated against to pursue legal action. See below for a list of related state bills. There are also recent related bills that passed in Utah and Idaho and Mississippi. Finally, in contrast, Mississippi has HB618 and SB2828, which aim to repeal both the Mississippi Religious Freedom Restoration Act and the recent Protecting Freedom of Conscience from Government Discrimination Act (see above).
My Opinion.
Laws and policies like these concern me. I do believe in the right to practice your religion and the importance our moral values have in our lives. What I do not believe in is endangering the lives of other people because of my beliefs. If you are in a profession where you do not believe you can perform all of the tasks which may be needed because of your religion or moral convictions, than you should adjust what you are doing. Physicians swear the Hippocratic Oath, promising to “do no harm”. Refusal to provide medical procedures and treatments is harmful.
I find it hard to believe any health care provider has been forced to participate in an abortion that was not under some type of special circumstance, like an imminent threat to the life of the mother or fetus. If you are anti-abortion you are not working at an abortion clinic, which is where most abortions occur. While some hospitals do provide abortions, they tend to be medically complex abortions; like cases where the pregnancy poses a serious health risk.
Health care workers have a professional and ethical obligation to provide health care to all who need it. Every American deserves access to medically necessary health care. The health care provided should not be determined by the personal opinions of individual health care providers or administrative staff about the morality of the person needing treatment.
Cover Photo by James Coleman on Unsplash