A January 2018 report released by Columbia Law School found that pregnant women of color in the United States disproportionately turn to Catholic hospitals and face a greater risk of being denied reproductive healthcare due to religious restrictions. The report notes that hospitals often prioritize religious beliefs over best medical practice, creating a loophole that permits evasion of professional responsibility by citing religion as a basis for refusal. Coinciding with this report, a new division within the Office of Civil Rights in the Department of Health and Human Services (HHS)—called the Conscience and Religious Freedom Division—was announced to ensure that medical professionals can legally deny certain medical services to patients based on religious objections.
The Office of Civil Rights of the HHS has already possessed the authority to protect the religious freedom of medical professionals. As the Guttmacher Institute has stated, Title VII of the Civil Rights Act bars employers from discrimination against employees based on protected classes that include religion. The reports by Columbia Law School and the Guttmacher Institute identify states with laws that allow refusal of medical services on conscience-based grounds, demonstrating that almost all states permit certain healthcare providers to refuse abortion and several states permit denial of other reproductive care.
Roger Severino, director of the Office of Civil Rights, claims that the multitude of state laws protecting religious convictions are meaningless without a specific body to enforce them. Steps by President Trump’s administration to restrict reproductive care began as early as last May with an executive order that, in part, calls for amended regulations supporting conscience-based objections to the Affordable Care Act’s mandate on preventive care. Another development came in October when the Trump administration reversed a requirement that employers cover birth control in their health insurance plans. In response to the latest development of the Conscience and Religious Freedom Division, Planned Parenthood recognizes the new division as a tool to reinforce discriminatory practices against women and LGBTQ patients.
Supporters of the new division cite case precedence and federal law to support enhanced protection of religious objections to medical care. Some supporters refer to Roe v. Wade, which stated that medical personnel may not be required to perform services that violate personnel’s moral principles. Further, Burwell v. Hobby Lobby Stores, Inc. held that the contraceptive mandate under the Affordable Care Act violated the Religious Freedom Restoration Act of 1993 as it applied to corporations with limited shareholders. The statutes used to support the division, however, refer more specifically to reproductive services such as abortion. This causes speculation as to how non-reproductive services could likewise be denied on the basis of sexual and gender identity.
Though international human rights instruments protect religious freedom, they impose limitations on a government’s protection of this freedom. The United States has ratified the International Covenant on Civil and Political Rights (ICCPR). Article 8 of the ICCPR prohibits forced or compulsory labor but states that this type of labor does not include service that comprises normal civil obligations. Articles 18 and 19 of the ICCPR also state that religious freedom may be subject to limitations as necessary to protect public health. Under these articles, healthcare providers inherently have the civil responsibility to protect public health, and they are thus prohibited from imposing their religious beliefs on patients.
The American Civil Liberties Union (ACLU) asserts that the right to religious freedom does not grant the right to discriminate or impose religious beliefs on others. Keeton v. Anderson-Wiley held a similar stance: the Eleventh Circuit found that a university’s neutral requirement—that all students trained in a counseling program must comply with the American Counseling Association Code of Ethics—did not target any particular religious beliefs. The Eleventh Circuit further stated that because this requirement was unbiased in its application to all students, a student enrolled in the program who did not wish to comply was looking for preferential rather than equal treatment.
International and federal law require a balance between protecting the rights of religious freedom and public health. According to the ACLU, the Trump administration has applied a double standard to religious freedom since the President first took office. While there are measures in place for protecting the religious freedom of medical professionals, the Trump administration has sought to add greater protections only for certain religions. The administration relies on vague language and selective reference to case law to defend its actions. Under the ICCPR and the Eleventh Circuit, a distinction must be respected in protecting all religious beliefs without allowing preferential treatment to deny a universally recognized right to health.