A License to Discriminate in Health Settings

In a recent federal court case, Religious Sisters of Mercy v. Azar (2021), a coalition of healthcare entities affiliated with the Catholic Church attacked a nondiscrimination provision under Section 1557 of the Patient Protection and Affordable Care Act (PPACA). The U.S. District Court in North Dakota granted a permanent injunction that enjoins the US Department of Health and Human Services (HHS) from enforcing Section 1557 of the PPACA. This injunction also prevents the HHS from withholding federal funding to religiously affiliated providers and insurers who deny transition services. The Plaintiff in this case originally sought an exemption from the anti-discriminatory laws that compelled them to perform and provide coverage for gender transitions and abortions. The Court, however, chose not to rule on the abortion claims. Although this ruling granted protection of religious freedoms under the First Amendment, it also allows healthcare providers impose their religious beliefs onto others and deny essential transgender health services. The implications of this ruling could lead to a broader chipping away of protections for healthcare services that are perceived as “unconscionable” by religiously-affiliated providers and insurers.

Section 1557 of the Patient Protection and Affordable Care Act states that patients shall not, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.” The congressional intent of this provision was to create an all-encompassing healthcare antidiscrimination statute. This was demonstrated through the expansion of existing civil rights laws, specifically the expansion of Title IX, which had only prohibited sex discrimination in federally-funded school activities. Other important civil rights laws that the provision expanded include Title VI (preventing race, color and national origin discrimination), Section 504 (preventing disability discrimination) and the Age Discrimination in Employment Act (preventing age discrimination).

Religiously-affiliated hospitals make up a large portion of the of the hospital’s patients have access to in the United States. In 2016, MergerWatch and Maidson Healthcare Advisors released a report showing that 14.5% of all acute care hospital in the U.S. were Catholic affiliated. The report also found that 46 of these Catholic affiliated hospitals are the sole short-term, acute health care resource for many patients living in specific geographical regions. As a result of this ruling, patients living in these regions who lack access to adequate transportation, have now lost access to transition services.

Should religious protections under the First Amendment extend to health programs at the expense of equitable health care access? While some could argue that those in need of transgender health services can just go to a non-religiously-affiliated hospital, many of these individuals are limited to the hospitals within their geographical region. As other First Amendment lawsuits similar to Religious Sisters v. Mercy are filed, courts will have to determine if granting relief  to religiously-affiliated health entities limits the protections of Section 1557 under the guise of religious freedom.           

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