The Department of Health and Human Services has created a Division of Conscience and Religious Freedom to permit healthcare providers to decline to provide care for patients. The refusal can be based on religious and/or philosophical reasons, major and tangential beliefs alike. It is unclear whether it is creating a right of doctors to decline particular types of care or a right to discriminate against a patient according to status that conflicts with the healthcare provider’s beliefs. For example, the language would seem to permit a doctor to refuse to perform transgender surgery based on religious reasons and a right of a doctor to refuse to treat transgendered individuals for all ailments.
The division was created in response to President Donald Trump’s executive order instructing the executive branch to “to vigorously enforce Federal law’s robust protections for religious freedom.” This is yet another iteration of the introduction of statute-based religious liberty into federal law, with the misbegotten Religious Freedom Restoration Act (RFRA), and has nothing to do with the First Amendment. As I explain here, religious liberty advocates often drape statutory religious liberty with constitutional jargon. But in the end what we are dealing with is just a statute.
The creation of this division is troubling in light of the experience in the Department of Justice (DOJ) with a “religion chair,” the Special Counsel for Religious Discrimination. In the case of the DOJ, the special counsel is in effect the lobbyist within the department for religious actors. It creates an imbalance that tips in favor of religious believers. Religious actors have a particular office where they can lobby for DOJ support in litigation, e.g., in Religious Land Use and Institutionalized Persons Act (RLUIPA) cases. Yet, there is no chair in the department for the people who are harmed by religious actors invoking RFRA or RLUIPA. With the DOJ preferring religious claims in this way, there is also a tendency to encourage arguments that push the envelope. The office itself presumes the supremacy of claims by religious actors.
The same message is sent by this new HHS division. The federal government has, in effect, erected a billboard that says we (as in the most powerful governing institution in the world) will back you up if you refuse medical care and can tell us it was based on some religious or philosophical belief. It invites the rejection of medical treatment based on faith, and it offers nothing for those who will be denied. The supreme right rests on the believers’ shoulders, while those who are harmed are just collateral.
There is a larger reason to be concerned about such offices in the federal government and the further infection of federal law by RFRA, because it positively encourages discrimination against the vulnerable, whether they be LGBTQ, transgender individuals, or women in need of reproductive care. It also reinforces and widens the divisions that are splitting the country. Instead of a focus on the one in need of medical care, the spotlight is on the provider, who is being encouraged to shape a practice only for those people that are simpatico with the doctor’s beliefs. There is no principle that limits the discrimination to sexual orientation and gender, either. It also justifies race-based discrimination, which, as the Trump Administration has reminded us, is alive and well in the United States.
This is yet another step toward the religious balkanization of American culture and another argument to impose one’s faith on another, without regard for the other. RFRA and RLUIPA do not require consideration of the harm to third parties, as the First Amendment has, and, therefore, have been invitations for believers to flex their muscles without regard to those who are hurt. RFRA, RLUIPA, and these preferred places for religion in the federal government are deconstructing the America where tolerance and peaceful co-existence are possible.
There is a simple solution: repeal RFRA and RLUIPA, eliminate the “religion chairs,” and return religious liberty to the wisdom of the First Amendment, which spurs the government to pass laws that are neutral for everyone, permits legislative accommodation, and that deters government action that negatively targets any religion. Instead, let’s focus on the real religious liberty deficits I discuss here.