The Danger of the Division of Conscience and Religious Freedom
Written by TJ Denley, ’19
The Department of Health and Human Services recently published a proposed rule that would expand the enforcement powers of its Conscience and Religious Freedom Division. Read on to learn more about the Division, and the impact expanded enforcement powers could have on hospitals and LGBTQ patients.
On January 18, 2018, President Trump announced the creation of a new division of the Office for Civil Rights (OCR) within the Department of Health and Human Services, called the Conscience and Religious Freedom Division (CRFD). The CRFD was created “to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”[1] The CRFD operates as a separate division under the OCR, though any complaint filed with the CRFD will be evaluated and investigated through the OCR.[2]
On January 26, 2018, the Department of Health and Human Services published a proposed rule that would expand the enforcement powers of the OCR to address issues of conscience and religious freedom. The OCR enforces “laws against discrimination based on race, color, national origin, disability, age, sex, and religion by certain health care and human services[,]”[3] and “ensures equal access to certain health and human services and protects the privacy and security of health information.”[4] The OCR investigates claims for violations of HIPPA.[5] It can also reach a settlement, known as a “Memorandum of Understanding”[6] or “Voluntary Resolution Agreement,”[7] for a violation of civil rights.[8]
The proposed rule from the Department of Health and Human Services would allow the OCR to use enforcement mechanisms such as “termination of relevant funding [for entities] in whole or in part, claw backs, referral to the Department of Justice, or other measures” against entities that are not in compliance with the proposed rule.[9] These proposed penalties are stronger than those that are currently applied for noncompliance with civil rights laws.
The proposed rule would also grant the OCR the authority “to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints.”[10] Thus, the CRFD takes on a significant role in conducting outreach, providing technical assistance, and enforcing compliance on issues of conscience and religious freedom, while harming patients and lessening the quality of health care for the most vulnerable.[11]
Conscientious objection, which is often associated with the military, has a long history in America, beginning with the colonial militias.[12] Conscientious objection in the military allows service members, including both those who were drafted and those who voluntarily joined, to object to being assigned to “combat training or military service.”[13] A conscientious objector in the military can only object to the role itself, not just certain duties or responsibilities.[14] She also must prove through an external assessment that the objection is sincere.[15] Finally, the conscientious objector must either perform an alternative service or be imprisoned.[16]
In the medical field, on the other hand, a health care provider can refuse to provide care to a person if the care, though medically appropriate, is against the health care provider’s religion or conscience.[17] Conscientious objection in the medical field is a relatively new concept that began to proliferate after the Vietnam War ended and the Roe v. Wade decision in 1973, often centering on objections to abortion.[18]
Conscientious objection in the medical field is governed mainly by the following series of laws: the Church Amendments, the Public Health Service Act § 245, the Weldon Amendment, and the Affordable Care Act. These laws, with the exception of the Affordable Care Act, refer only to the right of a medical provider and/or facility to refuse to provide abortions and/or sterilizations if such procedures conflict with the their conscience or religion.[19] The Weldon Amendment denies federal funding to any medical entity that discriminates against anyone who refuses to provide abortions, due to their religion or conscience.[20] In 2009, President George W. Bush extended these protections so that a person was no longer required to participate in any treatment or research that was “contrary to his religious beliefs or moral convictions.”[21] The Affordable Care Act restricted President Bush’s expansion of the conscientious objection to abortion and included a provision upholding religious and conscientious objection to assisted suicide, euthanasia, and mercy killing.[22]
Medical providers are also bound by the ethical guidelines of their chosen profession, as well as of their professional organizations, including the American Medical Association, the American College of Obstetricians and Gynecologists, and the American Pharmacists Association. These ethical guidelines highlight the centrality of the patient’s wellbeing.[23] Under these guidelines, conscientious objection is accepted. However, these guidelines emphasize that the professional obligation to provide accurate and complete information remains, and that providers should also offer a referral to a different medical provider who is willing to administer the necessary care. Importantly, the ethical guidelines stress that care must be provided despite religious/conscientious objections in cases of emergency.[24]
In practice, if a health care provider encounters a patient experiencing an emergency and no one else is available, that health care provider cannot refuse to care for the patient. In a hospital setting, for example, a medical doctor who refuses to provide care to a patient who has had or needs an abortion cannot be the only physician on duty.[25] In a pharmacy, a pharmacist who refuses to provide emergency contraception, cannot be the only person who is available to fill the prescription.[26] This may limit the hours or shifts a health care provider is able to work, but in doing so it allows for patients to get medically appropriate care without delay.
During the press conference announcing the CRFD, the director of OCR, Roger Severino, stated:
No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming, and it begins here and now.[27]
While health care providers should not be forced to choose between helping sick people and living by their personal convictions, no patient should be denied care due simply to a health care provider’s personal convictions. In 2015, a Michigan pediatrician refused to provide care to a six-day-old newborn because she had two mothers.[28] The pediatrician cited her religious beliefs, stating: “After much prayer following your prenatal [sic], I felt that i [sic] would not be able to develop the personal patient-doctor relationships that I normally do with my patients.”[29] This is an issue not only for same-sex parents; the parents in this case referenced interracial couples whose children have also been refused care due to the differing races of their parents.[30]
A 2017 survey performed by the Center for American Progress looked at the discrimination and mistreatment LGBTQ persons seeking medical treatment face at doctors’ offices.[31] Among the LGBTQ persons who visited a doctor or health care provider in the past year, eight percent said a doctor or other health care provider refused to see them because of their actual or perceived sexual orientation.[32] Six percent of those respondents said a doctor or other health care provider refused to give them health care related to their actual or perceived sexual orientation.[33] For transgender patients, twenty-nine percent reported that doctors refused even to see them because of patients’ actual or perceived gender identities, and twelve percent said they were refused care related to gender transition.[34] The survey also asked if it was “very difficult” or “not possible” to get the appropriate care from another hospital, clinic, office, or pharmacy.[35] The survey separated responses to this question into two categories: those from respondents living in metropolitan areas and those from respondents living in rural areas. Eight to eighteen percent of LGBTQ people living in metropolitan areas answered in the affirmative. For those living in rural areas, affirmative answers ranged from seventeen to forty-one percent.[36] The range for transgender respondents who answered in the affirmative was sixteen to thirty-one percent.[37]
Allowing medical providers and facilities to object to providing care based on freedom of religion or conscience compromises the care of patients and places them at greater risk. One such patient is Tamesha Means, who was suffering from a miscarriage at eighteen weeks and went to the only hospital in her county, a Catholic hospital affiliated with Trinity Health.[38] She was sent home twice, the second time while bleeding, only to come back to the hospital a third time with a serious infection that had developed due to the lack of care.[39] Before being sent home for the third time, labor began and Tamesha delivered a baby who died within a few hours.[40] The hospital acted in accordance with the Ethical and Religious Directions for Catholic Health Care Services, which did not allow “directly intended” terminations of a pregnancy before viability in any circumstance. This means that any procedure where the intent is to terminate the pregnancy by killing the baby is prohibited.[41]
Other concerns about the CRFD include the fact that health care related entities would be required to include conscience and religious freedom as part of their nondiscrimination policies, which might result in changes in training procedures, record keeping, and posting requirements. These changes could cost up to an estimated $312 million in the first year of enforcement.[42] Also, with the new emphasis on conscience and religious freedom within the OCR, there is concern that these protections “arguably reflec[t] a prioritization of such protections over the other compelling antidiscrimination and privacy roles that OCR serves.”[43] Jocelyn Samuels, the head of the OCR during President Obama’s terms, voiced a concern that the “office will divert too much energy to handling a relatively small number of religious freedom and conscience complaints.”[44] Additionally, with the new CRFD, the rights of those who claim conscience and religious freedom are elevated to the same level as those who claim discrimination based on race, color, national origin, disability, age, and sex.
With the advent of the CRFD there will likely occur more cases where a patient’s life is put in danger because a medical facility refused to provide appropriate medical care. Existing law and practice allow health care providers to object to providing medical treatment for reasons of religion or conscience as long as another provider is available to administer any needed care. The policy changes regarding conscience and religious freedom through the OCR and CRFD will replace current practice and allow more providers to claim conscientious objection. Indeed, within two months of the creation of the new division, at least forty complaints by health care providers have been filed, compared with only ten from 2008 through October 2016.[45] The CRFD will not simply protect those who believe that they are being forced to sacrifice their beliefs to provide care; it will, at the same time, harm patients and lessen the quality of care for the most vulnerable.
[1] Press Release, Office for Civil Rights, HHS Announces New Conscience and Religious Freedom Division, Dep’t Health & Human Servs. (Jan. 18, 2018), https://www.hhs.gov/about/news/2018/01/18/hhs-ocr-announces-new-conscience-and-religious-freedom-division.html.
[2] Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880, 3885 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88).
[3] Office for Civil Rights, Civil Rights for Individuals and Advocates, Dep’t Health & Human Servs. (Jan. 18, 2018), https://www.hhs.gov/civil-rights/for-individuals/index.html.
[4] Office for Civil Rights, Health Information Privacy, Dep’t Health & Human Servs., https://www.hhs.gov/hipaa/index.html (last visited Nov. 22, 2018).
[5] Office for Civil Rights, Filing a Complaint, Dep’t Health & Human Servs., https://www.hhs.gov/hipaa/filing-a-complaint/index.html (last visited Nov. 22, 2018).
[6] Office for Civil Rights, Memorandum of Understanding Between the U.S. Departments of Health and Human Services and Justice, Dep’t Health & Human Servs. (Jan. 9, 2017), https://www.hhs.gov/sites/default/files/doj.pdf.
[7] Voluntary Resolution Agreement Between the United States of America and University of Vermont Medical Center, Dep’t Health & Human Servs., https://www.hhs.gov/sites/default/files/uvmmc-vra.pdf (last visited Nov. 22, 2018).
[8] Office for Civil Rights, OCR News Releases & Bulletins, Dep’t. Health & Human Servs. (Nov. 5, 2018), https://www.hhs.gov/ocr/newsroom/index.html.
[9] Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880, 3891 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88).
[10] Id. at 3880.
[11] Id.
[12] Ronit Y. Stahl & Ezekiel J. Emanuel, Physicians, Not Conscripts—Conscientious Objection in Health Care, 376 N. Engl. J. Med. 1380, 1380–81 (2017).
[13] Id.
[14] Id.
[15] Id.
[16] Id.; see also 50 U.S.C § 3806(j) (2018) (defining a conscientious objector’s failure to follow orders of her local board as failing or neglecting to perform a required duty); 50 U.S.C. § 3811(a) (2018) (proscribing a penalty of imprisonment and/or fine for failing or neglecting to perform a required duty).
[17] Office for Civil Rights, Conscience Protections for Health Care Providers, Dep’t Health & Human Servs. (Mar. 22, 2018), https://www.hhs.gov/conscience/conscience-protections/index.html.
[18] Stahl & Emanuel, supra note 12, at 1381.
[19] Conscience Protections for Health Care Providers, supra note 17.
[20] Id.
[21] Stahl & Emanuel, supra note 12, at 1381.
[22] Conscience Protections for Health Care Providers, supra note 17.
[23] Stahl & Emanuel, supra note 12, at 1382; see also AMA Principles of Med. Ethics I, VII (AMA 2001); Code of Ethics for Pharmacists I, II (Am. Pharmacists Ass’n 1994); Code of Ethics with Interpretive Statements 1-3 (Am. Nurses Ass’n 2015).
[24] AMA Principles of Med. Ethics, VI; Am. Coll. of Obstetricians and Gynecologists Comm. on Ethics, Op. 385 (Nov. 2007) (discussing the limits of conscientious refusal in reproductive medicine).
[25] See Am. Coll. of Obstetricians and Gynecologists Comm. on Ethics, supra note 24.
[26] Pharmacy Refusals 101, Nat’l Women’s Law Ctr. (Dec. 28, 2017), https://nwlc.org/resources/pharmacy-refusals-101/.
[27] Press Release, supra note 1.
[28] myFOXDetroit.com Staff, Doctor refuses treatment of same-sex couple’s baby, Fox 2 (Feb. 18, 2015), http://www.fox2detroit.com/news/doctor-refuses-treatment-of-samesex-couples-baby (noting that a same-sex couple found a new pediatrician after original pediatrician refused to provide care for the child).
[29] Id.
[30] Fox 2 News Staff, Same-sex couple whose baby was refused treatment by doctor talk future, challenges ahead, Fox 2 (Mar. 14, 2015), http://www.fox2detroit.com/news/samesex-couple-whose-baby-was-refused-treatment-by-doctor-talk-future-challenges-ahead.
[31] Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care, Ctr. for Am. Progress (Jan. 18, 2018), https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/discrimination-prevents-lgbtq-people-accessing-health-care/.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id. The numbers “seventeen percent” and “eight percent” refer to finding a pharmacy and the numbers “forty-one percent” and “eighteen percent” refer to finding a hospital.
[37] Id.
[38] Claire Landsbaum, Doctors at a Catholic Hospital Refused to Treat a Woman’s Miscarriage for Religious Reasons, The Cut (Sept. 9, 2016), https://www.thecut.com/2016/09/a-catholic-hospital-refused-to-treat-a-womans-miscarriage.html.
[39] Id.
[40] Id.
[41] U.S. Conference of Catholic Bishops, “Ethical and Religious Directives” 26 (5th ed., 2009); see also Means v. U.S. Conf. of Catholic Bishops, No. 1:15–CV–353, 2015 WL 3970046 (W.D. Mi. S.D., 2015). Ms. Means’ law suit against the United State Conference of Bishops, which wrote and published the Ethical and Religious Directives, was dismissed for a few reasons. One reason was that ruling on the treatment Ms. Means received would have required the court to pursue an inquiry into church doctrine. The church did allow for a malpractice action to be filed against the doctors who provided care to Ms. Means.
[42] Stephanie Armour, Trump Appointee Harnesses Civil-Rights Law to Protect Anti-Abortion Health Workers, Wall Street Journal (Apr. 12, 2018), https://www.wsj.com/articles/health-workers-new-advocate-sees-objection-to-abortion-as-a-civil-right-1523611801.
[43] See Naomi Seiler & Katie Horton, The Bioethical and Legal Implications of HHS’s New Focus on Conscience and Religious Freedom, 18 Am. J. Bioethics 71 (2018).
[44] Alison Kodjak, Civil Rights Chief at HHS Defends The Right To Refuse Care On Religious Grounds, NPR (Mar. 20, 2018), https://www.npr.org/sections/health-shots/2018/03/20/591833000/civil-rights-chief-at-hhs-defends-the-right-to-refuse-care-on-religious-grounds.
[45] Emmarie Huetteman, At New Health Office, ‘Civil Rights’ Means Doctors’ Right to Say No to Patients, Kaiser Health News (Mar. 5, 2018), https://khn.org/news/at-new-health-office-civil-rights-means-doctors-right-to-say-no-to-patients/.