The Department of Health and Human Services Is Setting a Dangerous Precedent for Allowing Doctors to Deny Care

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Commentary Law and Policy

The Department of Health and Human Services Is Setting a Dangerous Precedent for Allowing Doctors to Deny Care

Sarah Stephan

For decades, health-care providers have had the ability to decline to provide care that conflicts with their religious beliefs. The new HHS rule goes above and beyond legal precedent.

Earlier this month, the Trump administration published a final rule saying health-care providers may legally refuse to provide care they have a religious or moral objection to.

This is not a wholly new development. For decades, health-care providers have had the ability to decline to provide care that conflicts with their religious beliefs and the legal protection to avoid workplace discrimination because of this choice. But the U.S. Department of Health and Human Services (HHS) is also inventing a dangerous and untested “freedom of moral conscience” for health-care providers.

The Trump administration is signaling its priorities. The Office of Civil Rights within the U.S. Department of Health and Human Services (HHS) is prioritizing mainstream Christian values through these specific civil rights protections. As much as we have justifiably raised alarm bells about the people who may be denied care because of this rule, we must also address the disturbing precedent of a “moral conscience” freedom that this rule so casually asserts.

Health-care workers have had robust protections from religious discrimination for decades. Since abortion became legal in 1973, federal legislators have passed laws allowing medical providers to opt out of its provision. Passed that same year, the Church Amendments protect any employee working with an organization that receives federal funding from being coerced into performing abortions or sterilizations. Any health-care employer found to discriminate could lose federal grant funding, which may constitute the majority of their operating budget. The Weldon Amendment, from a 2005 appropriation bill, reiterates this freedom from discrimination for health-care workers. The Affordable Care Act, too, explicitly prohibits discrimination against providers who do not assist with abortions or assisted end-of-life care. Countless court cases protect medical providers from offering other care that they disagree with; recently, a judge in Texas allowed a network of Christian health-care professionals to refuse to provide gender-affirming surgeries and abortions.

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Providers also have many options to avoid procedures with which they disagree. Catholic health systems are the fastest-growing health-care providers in some markets, especially in more rural areas. These systems prohibit a range of reproductive health-care services, including sterilizations and abortions, and largely refuse to perform gender-affirming surgeries. Providers who have ethical dilemmas with those banned services could work in these facilities—although, by contrast, medical personnel who work at them who feel an ethical obligation to provide such care may not be able to.

The Office of Civil Rights (OCR) within HHS was originally designed to investigate and enforce claims of discrimination toward health-care providers. It was created through Title IV of the Civil Rights Act of 1964, which prevents discrimination within federally funded services. Under the Trump administration, OCR at HHS has rearranged its mission around the protection of “religious freedom.” This has been done openly and intentionally: Roger Severino, director of OCR, has made it clear in his budget proposals and in interviews that enforcement against religious discrimination is a top priority.

The issue, however, is not genuine religious freedom. This administration is conflating the free exercise of religion and an undefined freedom of “moral conscience.” The U.S. Supreme Court has steadfastly protected religious exercise for decades. However, the Court has not given carte blanche to claim religious exemption without some evidence of religious beliefs. Regardless of the belief claimed—which has included Santeria and evangelical Christianity—the Court has required the person claiming exemption to show that their belief is both sincere and rooted in religious tradition. Even as it has been highly deferent to believers, the highest Court has required some evidence that this belief was genuine and the exemption not claimed from personal conscience, but from existing religious tradition.

In these and related rules, HHS has created an untested criteria to claim exemption: A provider may decline to offer care based on their moral conviction.

“Moral conviction” has no unified legal definition. The Supreme Court has not examined dozens of cases that examine a “moral conviction.” This open-ended standard is not a mistake, however. It is an intentional creation of a wide-open legal standard that allows any provider to deny care on nearly any personal basis. While other laws have stated that they protect “religious freedom or moral conviction,” only religious freedom has been routinely tested by courts in all jurisdictions.

A wide-open legal standard is alarming. The bar to claims of exemption due to a moral conviction must be low—how would a court deny what is in someone’s mind or moral code? With the current religious freedom standard, judges have goalposts of what constitutes “sincere belief.” Courts do not have to solely trust the credibility of a plaintiff, although they sometimes do; they may rely on religious tenets, scriptures, and traditions. An undefined “moral conviction” standard, however, has no such indicators. Asking judges to guess the content of someone’s personal moral code can easily lead to any person getting exemption from any legal requirement. Should a moral conviction standard continue as law, marginalized groups will face increasing denial of not only medical services but unequal treatment in any number of businesses and government services.

The United States is not a religious monolith. Providers of faiths that condone abortion and gender-affirming surgery, but may face other forms of religious discrimination at work are seemingly unimportant to OCR. OCR may counter that the moral conviction standard allows for all beliefs, but its laser focus on limiting reproductive and sexual care betrays an anti-choice and anti-LGBTQ ideology. Further, health-care providers are constantly faced with ethical dilemmas at work and may have to act against their morals in favor of the patient’s wishes and their professional obligations. Importantly, a provider may be the only one available to help a patient.

These rules are clearly meant to champion mainstream Christian providers looking for another way to deny giving reproductive and sexual health care. Even if enforcement has been recently lagging, as OCR suggests in the final rule, they are already protected. These rules are clearly meant to signal that the focus on “religious liberty” will enforce protections for providers who do not want to perform abortions or gender-affirming procedures. And despite the lack of court precedent, the increasingly conservative federal judiciary is likely to uphold the expanded freedoms of religion and moral conviction.