Our shared Constitution ensures that we need not share a religion. However, in the name of religious liberty for health care providers, recent legal developments are chipping away at the rights of patients to seek medical procedures. Conscience-based objectors have long been permitted to exempt themselves from the actual provision of procedures like sterilization or abortion, but the Trump Administration’s Department of Health and Human Services (HHS) finalized a rule in May 2019 that permits health care workers with “any articulable connection” to a procedure to opt-out. The policy’s most damaging consequence is that it allows providers to not only decline to provide service, but to decline to refer a patient to a provider who does not have a conscience-based objection. Some providers argue that a referral constitutes complicity. Even if that is the case, it is also an imposition of their faith or morality on patients, especially members of vulnerable communities. Many religious and secular individuals alike seek out health care providers for medical healing, not spiritual advice.
Several legislative measures enacted since the 1970s allow providers to decline to participate in a procedure if it violates their conscience. Accordingly, the Office for Civil Rights (OCR) at the Department of Health and Human Services recently issued a Notice of Violation finding that the University of Vermont Medical Center (UVMMC) intentionally compelled a nurse to participate in an elective abortion against her established conscience objection. If the alleged violation is accurate, the nurse’s objection would fall squarely within the exemptions carved out decades ago for religious health care providers. Roger Severino, the director of the Trump Administration’s OCR at HHS, asserts that health care professionals should not be “[coerced] to choose between a career dedicated to supporting life versus instances and situations where they were being forced to take life.” It should not be a stretch to empathize with a woman who felt that she was faced with a choice between a procedure she believed to be gravely immoral and loss of her employment. However, it is important to consider the implications of the status quo for vulnerable populations. Should the religious or moral beliefs of a provider or organization be allowed to override a patient’s desire or dire need for a safe procedure? While this question may be largely settled as a matter of federal law, it is not as ethically clear-cut as Severino would have us believe.
Women, especially women of color, and LGBTQ communities are hit hardest by religious exemptions. For instance, the safest time for many women to undergo a tubal ligation is immediately following childbirth by cesarean section. However, women who give birth in Catholic hospitals are routinely denied this opportunity as a result of Catholic policies forbidding sterilization. While avoiding Catholic hospitals may seem like an obvious solution for women seeking the procedure, many facilities are beginning to conceal their religious affiliation. If women in labor are unaware of the hospital’s Catholic status, they will have to seek out another provider and undergo a subsequent postpartum surgery in order to prevent another pregnancy. Moreover, reliable access to secular health care can be nonexistent for individuals in rural or religious regions of the country. As of 2016, one in six hospital beds nationwide are Catholic. In Washington State, over 40% of hospital beds are Catholic. The stakes are higher when considering Catholicism’s staunch opposition to abortion, even when a mother’s life may be in danger. Ten to twenty percent of known pregnancies end in miscarriage, which can be accompanied by hemorrhaging, among other life-threatening complications. However, the Ethical and Religious Directives for Catholic Health Care Services issued by the United States Conference of Catholic Bishops forbids Catholic hospitals or providers from assisting in the miscarriage until it can be determined that there is no longer a fetal heartbeat, or that the mother’s life is sufficiently endangered. While federal law and professional ethics mandate that providers assist in emergencies, Catholic hospitals that err on the side of the mother’s life can face loss of their Catholic affiliation. Many women find themselves in this terrifying and deadly predicament upon either intentional or inadvertent arrival at a Catholic hospital.
For transgender individuals, negative health care experiences are alarmingly common and damaging. At least one study indicates that transgender individuals who have a discriminatory experience at the hands of a health care provider are at higher risk of suicide. People turn to health care providers for assistance and healing, not condemnation. Women of color also bear a disproportionate burden. According to the CDC, black women die three to four times more frequently during childbirth than their white counterparts. They are also more likely to give birth at a Catholic hospital.
Instead of thoughtfully tailoring the preexisting exemptions to balance the harms to patient and provider, the Trump Administration has stretched them further, announcing a new policy that would allow health care workers even tangentially related to a procedure to exempt themselves. Hospitals, pharmacies, ambulance drivers, and receptionists can all qualify as having “any articulable connection.” In 1993, Congress responded to the Supreme Court’s faltering defense of free exercise by passing the Religious Freedom Restoration Act (RFRA). RFRA established a balancing test for facially neutral laws that impinge on religious practice: legislation can substantially burden free exercise only if it is (1) in furtherance of a compelling government interest and (2) the least restrictive means of furthering that interest. It has since been found unconstitutional as applied to the states, but continues to apply to the federal government. Religious liberty and civil rights advocates alike initially welcomed RFRA, but in 2014, the Supreme Court embarked on an expansion of RFRA that enables religious liberty to be a sword, not a shield. Burwell v. Hobby Lobby extended RFRA’s protections to for-profit companies and endorsed what is known as a “complicity claim.” A religious individual (or corporation) makes a complicity claim when they seek exemption from participation in a third-party’s lawful activity that they perceive to be sinful. Hobby Lobby successfully argued that the Affordable Care Act’s requirement that they provide employees with insurance covering birth control—which they branded as “abortifacients”—violated their conscience by making them complicit in abortion.
While the complicity claims permissible under the new HHS policy appeal to religious health care providers, they throw the door wide open for violations of patients’ rights. Most worryingly, they allow providers to refuse to refer patients out for procedures like abortion or gender affirmation surgery. The executive director of the American Association of Pro-Life Obstetricians and Gynecologists has suggested that referring a patient out for an abortion is “material cooperation” analogous to giving a patient struggling with opioid use the name of a drug dealer. Abortion is a safe and legal procedure to which Americans have a right. Moreover, to create a false equivalence between a woman seeking a legal abortion and an individual seeking non-medical access to opioids makes plain that refusals to refer are personal moral beliefs, masquerading as medical judgment. Refusing to refer to a secular provider on personal religious grounds is not a legitimate expression of medical judgment. For patients in more populous areas, or those with money and reliable transportation, a refusal to refer can be a mere inconvenience. For others, it can inhibit or discourage them from obtaining the procedure at all. While requiring religious health care providers to make referrals may burden their religious liberty, it must be balanced against the burden that women like Tamesha Meaks bear when they are sent home in the middle of a miscarriage, with a few Tylenol and without a referral to a secular hospital. In other words, the First Amendment right of providers to be religious ought to be balanced against the First Amendment right of patients to secular healthcare. Perhaps the pulpit, not the hospital, is the appropriate forum for providers to promote their beliefs.
The power to impose your faith on others is particularly salient in the health care context, and the Supreme Court has long recognized that religious liberty should not be used to harm others. One person’s religious liberty ought to terminate where another’s begins. When Congress felt as though the Court began to damage this principle, it responded with the passage of RFRA. Similarly, the legislative or executive branch of the next administration should move swiftly to ameliorate the damage that Hobby Lobby and HHS’s new policy have done to the rights of patients across the country.