Healthcare professionals in the United States who have felt qualms about performing procedures that violate their consciences have been heartened to hear that the federal Department of Health and Human Services has just opened an office to help them.
At hhs.gov, this new civil rights division promises that:
You may file a complaint under the Federal Health Care Provider Conscience Protection Statutes if you believe you have experienced discrimination because you:
(citing statutes at 42 U.S.C. Sections 300a-7 et seq., 238 (n), 18113, and others).
HHS has taken a page from the new book of the Department of Justice, which has issued fresh Guidance on “Federal Law Protections for Religious Liberty” (Office of the Attorney General, 2017). That document opens with a robust affirmation of freedom: “In the United States, the free exercise of religion is not a mere policy preference to be traded against other policy preferences. It is a fundamental right…”
Here are some of the Guidance’s salient passages:
1. The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law….
4. …Individuals and organizations do not give up their religious-liberty protections by providing…healthcare; by seeking to earn or earning a living; by employing others to do the same; by receiving government grants or contracts; or by otherwise interacting with federal, state, or local governments.
5…. the Free Exercise Clause of the Constitution protects against government actions that target religious conduct. Except in rare circumstances, government may not treat the same conduct as lawful when undertaken for secular reasons but unlawful when undertaken for religious reasons.
In various sections, the Department of Justice reiterates and broadly interprets the Religious Freedom Restoration Act, Title VII’s guarantee of reasonable accommodation of religion in the workplace, and President Bill Clinton’s Guidelines on Religious Exercise and Religious Expression, all of which are generally protective of religious practice. It closes by exhorting federal agencies to “pay keen attention, in everything they do, to [these principles]” (Office of the Attorney General).
Seen together, the new DOJ and HHS guidelines will create a refuge from the bullying impulse of federal and state agencies to trample employees’ and employers’ more tender consciences over things such as assisting suicides, providing abortifacient drugs, participating in sex change or hormonal change of adult and child patients, offering insurance coverage for objectionable therapies and procedures, counseling patients about same-sex attraction, and performing abortions.
These developments come just in time. The will to power of various government entities is formidable. New York Governor Andrew Cuomo just signed an executive order banning the state from contracting with entities that “promote or tolerate” discrimination, language often used to create obstacles for churches and faith-based organizations. He referred to the federal government rescinding a contraceptive coverage mandate under the Affordable Care Act, saying that “this action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.”
Nearby in Canada, Toronto Right to Life is suing Justin Trudeau’s Liberal government for violating the Canadian Charter of Rights and Freedoms by requiring employers to sign an “attestation” supporting abortion and transgender rights to receive summer job funding grants. Furthermore, the Superior Court of Justice Division Court of Ontario ruled in early February that all doctors must refer for euthanasia, telling objecting doctors that they “do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.”
In 2016, Ralph’s Thriftway and two other West Coast pharmacies were refused relief from a requirement to stock the morning-after pill by a U.S. Supreme Court that had just lost Justice Antonin Scalia. Since the Court merely declined to take up the case, and has since added Justice Neil Gorsuch, it is likely that religious healthcare providers may receive help from the judicial branch as well.
The Hippocratic Oath promises the following to patients:
“I will do no harm or injustice to them.
I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.
In purity and according to divine law will I carry out my life and my art.”
It’s high time that governments stop putting obstacles in the way of such noble aspirations.
Leah Farish is a civil rights attorney. Her work has focused on religious civil liberties and often involved disputes over education and the rights of children. She won the Mary Beth Tinker Award from American University's Marshall-Brennan Constitutional Law Project for her work in Hearn and U.S. v. Muskogee School District.
