On January 18th, 2018 the Department of Health and Human Services answered the President’s May 4th executive order “Promoting Free Speech and Religious Liberty” by creating the Conscience and Religious Freedom Division (“CRF Division”) in the Office for Civil Rights (“OCR”). The CRF Division seeks to enforce existing federal statutes that protect health care providers from discrimination if they refuse to provide or refer medical services that run contrary to their religious beliefs. HHS then followed up with a proposed rule requiring health care organizations to post notices of religious freedom protections on job applications and employee manuals. The proposed rule applies to health care facilities that receive federal funding. Collectively, these initiatives affect more than 745,000 health care facilities and are estimated to cost $312.3 million dollars in the first year. Supporters believe this is a monumental step in promoting long over-due religious freedom protection. However, opponents are concerned about how extensive these protections will be, and whether they will negatively impact patients’ access to critical health care.
The religious freedom statutes upon which HHS’s proposed rule is based, collectively referred to as “Federal health care conscience and associated anti-discrimination laws,” largely impact access to medical services for women. For example, the Weldon Act provides “protections for health care entities and individuals who object to furthering or participating in abortion” and the Coats-Snow Amendment provides “conscience protections related to abortion, sterilization and certain other health services.” HHS argues that while these laws and numerous others are in fact codified, they are not being enforced to the necessary extent. Therefore, the CFR Division is tasked with reviewing the growing number of complaints filed in the OCR. Since President Trump was elected, the OCR received thirty-four complaints of conscience violations while the Obama administration received ten. The complaints allege discriminatory employment practices ranging from compelling nurses to either provide abortion referrals or resign to not hiring an individual based on religious beliefs conflicting with hospital policies. Pursuant to the complaints, the CRF Division will conduct compliance reviews, investigations, and audits to ensure that health care providers are compliant with federal legislation.
How do these initiatives impact patients? While they focus on protecting health care providers, the Department of Health and Human Services’ proposed rule reveals how patients can benefit from increasing religious freedom protections. These patient-centered benefits include having the ability to choose a healthcare provider who shares their “deepest convictions” and to “speak frankly about their own convictions that concern questions touching upon life and death.” However, critics argue that HHS’s initiatives are inherently not patient-centered because they go against the fundamental idea that health care providers are supposed to put their patients’ interests before their personal beliefs. For example, in a 2000 case, a New Jersey woman suffering from pregnancy complications was “standing in a pool of blood” and required an emergency C-section. After a nurse scrubbing in realized the C-section would terminate the pregnancy, she objected to continuing assistance on religious grounds and delayed the procedure. After refusing a reassignment offer to the newborn ICU from the hospital, the nurse was terminated. She sued the hospital and the court ruled in favor of the hospital. While the CRF Division was enacted to help protect nurses and other health care workers in situations like this moving forward, the fact still remains that patients risk receiving delayed care or no care at all.
The strong support behind protecting religious freedom also poses a concern when vulnerable populations like LGTB patients cannot access the care they need. OCR Director Roger Severino expressed during the CRF Division’s press conference that “a nation that respects conscience rights is a more diverse nation, it is a more free nation, and is a more just nation.” However, while HHS focuses its efforts on protecting religious freedom, it is risking promoting discrimination against vulnerable populations. For example, one Catholic hospital blocked a doctor from performing a hysterectomy on a transitioning transgender patient. It is unlikely that HHS will promote similar conscience protections for LGBT patients during the current administration. This is evidenced by a statement from Severino, who said “on the basis of religious teachings, moral reasoning, scientific evidence, and medical experience, many have strong grounds to hold that one’s sex is an immutable characteristic.” President Trump’s Justice Department also holds similar beliefs, stating said “sexual orientation is not a protected category” in regards to discrimination protections.
At this point, it is unclear the full impact these initiatives will have on access to health care for women and vulnerable populations like LGBT patients. However, one thing is clear: forcing doctors to refrain from care conflicts with their moral convictions the same way forcing doctors to provide it does. Therefore, a balancing test is necessary to ensure that while peoples’ religious convictions are being respected, patients’ access to care is not compromised as a result. The National Health Law Program argues that given the small percentage of people filing complaints with the OCR, the Trump Administration is creating solutions like the CRF Division to problems that do not really exist. However, if complaints continue to grow and cannot be solved by non-litigious means, the ultimate determination on whether religious freedom protections reach as far as HHS intends will come from adjudication in federal courts.