HHS now has a “Conscience and Religious Freedom Division” intended to protect the religious liberty of healthcare workers. As with anything the Trump administration does, this is either a great leap forward or a total disaster, depending on your choice of news media.
Here are the facts:
Official news release, 1/18/18: HHS Announces New Conscience and Religious Freedom Division
Today, the U.S. Department of Health and Human Services (HHS) is pleased to announce the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR). …
The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom. OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information. The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.
OCR already has enforcement authority over federal conscience protection statutes, such as the Church, Coats-Snowe, and Weldon Amendments; Section 1553 of the Affordable Care Act (on assisted suicide); and certain federal nondiscrimination laws that prohibit discrimination on the basis of religion in a variety of HHS programs. …
… Social conservatives and religious liberty leaders have anticipated conscience and religious freedom protections to come out of HHS, and the work of the new division, which will fall under the purview of the Office of Civil Rights, will likely pave the way for health care workers to refuse specific types of care, like birth control or abortion, based on their religious or conscience objections.
Critics say the move could hurt civil rights protections for lesbian, gay and transgender people, and hurt patient care. …
At the heart of the creation of the new division at HHS is a push by religious liberty and faith-based groups to enforce federal anti-abortion conscience laws, like the 1990s Coats-Snowe amendment and the 1970s Church amendment, which give nondiscrimination protections to federally funded programs that do not provide abortion services, and the Weldon Amendment, started under President George W. Bush.
The move Thursday could be viewed as an expansion of the Weldon amendment, which prohibits any state or local government receiving federal HHS funds from discriminating against any health care organization based on its refusal to “provide, pay for, provide coverage of, or refer for” abortions. The Obama administration pulled back the regulations, instead leaving HHS’s Office of Civil Rights to field complaints for violations of conscience and religious freedom laws. …
Here’s an official overview from HHS about the laws on Conscience Protections for Health Care Providers. One of the central items is the so-called “Church amendments”:
The conscience provisions contained in 42 U.S.C. § 300a-7 et seq., collectively known as the “Church Amendments,” were enacted in the 1970s to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions. This provision also extends protections to personnel decisions and prohibits any entity that receives a grant, contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating against any physician or other health care personnel in employment because the individual either performed, or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions.
Today’s announcement has lots of rhetoric but no clear indication of how the laws will henceforth be enforced. For a clue, though, we can look at the list of guests to be present at the official announcement. Sara Hellwege was one such guest.
Ms Hellwege is a nurse-midwife who, in 2014, applied for a job in the Family Planning section of Tampa Family Health Centers. TFHC receives a federal Title X Family Planning Services grant, under which they are required to provide:
a broad range of acceptable and effective family planning methods and related preventive health services that include natural family planning methods, infertility services, and services for adolescents; highly effective contraceptive methods; breast and cervical cancer screening and prevention services that correspond with nationally recognized standards of care; STD and HIV prevention education, counseling, testing, and referral; adolescent abstinence counseling; and other preventive health services. The broad range of services does not include abortion as a method of family planning.
Ms Hellwege has a religious belief that some contraceptive methods are a form of abortion, so she was unwilling to provide those services. TFHC declined to hire her, so she sued them under the Church Amendments and several other laws. In 2015, the Church Amendment portion of her lawsuit was dismissed with prejudice, because “In the absence of Congressional intent to support a private remedy for violation of the Church Amendments, the Court finds that no private right of action exists under the Church Amendments.” A settlement was later reached on the remainder of the lawsuit.
We have to assume that the inclusion of Sara Hellwege in this event signals the intent of HHS to enforce a particular interpretation of the Church Amendments — namely, that an employee’s personal belief that a particular procedure is “abortion” is all that is necessary, even if the medical world calls it contraception. In cases like Hellwege vs TFHC, this means that a family planning clinic receiving Title X grants is required to provide contraception, but is also required to hire employees who refuse to provide contraception because of their religious belief.
It’s difficult to predict whether this sort of thing will be extended beyond abortion/contraception issues. Will health care employees have federal protection if they refuse to provide other particular types of care to particular individuals on religious grounds? For example, transgender individuals are currently alarmed and angry that health care providers might refuse to provide certain treatments for gender dysphoria (e.g., dispensing hormone prescriptions or performing surgery) because they have religious objections to such treatments. We can expect lots of court cases.