Religious Right Loves 'License to Discriminate' in Health Care

Perkins Waggoner Staver

Leaders of the religious right are overjoyed about the Trump administration’s establishment of a new “conscience protection” division in the Department of Health and Human Services.

Division of Conscience and Religious Freedom, announced Thursday as a new entity within HHS Office of Civil Rights, has a mission to enforce “laws and regulations that protect conscience and prohibit coercion on issues such as abortion and assisted suicide (among others) in HHS-funded or conducted programs and services,” according to its website.

And today, HHS announced a proposed rule "to further protect health-care workers who think they are being punished or discriminated against because of their beliefs," The Washington Post reports.The rule, which is subject to a 60-day public comment period, "outlines financial and legal consequences for employers who 'intimidate or retaliate' against those who believe that participating in a procedure would cause them to violate their conscience," the Post notes.

Civil rights advocates say the new office and rule will enable widespread discrimination against women and LGBT people, especially women seeking abortions or transgender people seeking transition-related care.

But according to the religious right, that’s something to be welcomed. “Planned Parenthood complained that an office like this would ‘impose a broad religious refusal policy that will allow individuals and institutions to deny basic care for women and transgender people. We know from experience that denial of care compromises care,’" Family Research Council president Tony Perkins wrote in his Washington Update column. “Killing a child isn't care. And while Cecile Richards's group might be quite comfortable in its moral vacuum, most Americans are not. The freedom to believe is for everyone – or it isn't freedom at all.”

“The establishment of a Conscience and Religious Freedom Division by the Department of Health and Human Services within its Office for Civil Rights is an historic and positive step by the Trump administration to protect religious freedom and the rights of conscience,” Liberty Counsel founder and chairman Mat Staver said in a press release. “The Department of Health and Human Services under the Obama administration was hostile to conscience and religious freedom rights. Today’s announcement is refreshing and exciting. Religious freedom is our first freedom and I welcome the news that HHS is committed to protecting our precious freedom. The Trump administration is to be commended for making this 180-degree turn from the past administration which used the federal government to violate religious freedom and conscience rather than protecting them. This move sends a strong message that there must be a commitment to protecting religious freedom.”

Concerned Women for America basically admitted that the new division will facilitate discrimination against trans people. Specifically, this division will deal with conscience objections of healthcare workers who are forced to perform or participate in an abortion in violation with their deeply held beliefs,” noted a post on the CWA website. “Additionally, this new division will also focus on the increasing issue of protecting the conscience rights of healthcare workers who object to participating in the gender reassignment process.”

Bob Unruh, a columnist for far-right site World Net Daily, said the establishment of the new division bodes well for other businesses seeking the right to turn away customers on religious grounds. “The move could lead to new protections for Christian bakers who refuse to violate their faith and promote same-sex ‘weddings,’ venue owners who do the same, faith-based universities caught in ‘equal protection’ cases and pro-life organizations told they must promote abortion,” he wrote.

Of course, those instances would not be under the purview of HHS, but the Trump administration has also issued “religious freedom” guidance supporting religious exemptions for for-profit businesses, and argued at the Supreme Court on behalf of a baker who wouldn’t create a wedding cake for a same-sex couple.

And the private attorney representing the baker, Kristen Waggoner of Alliance Defending Freedom, praised the HHS move. “This new office will help ensure that HHS acts in accordance with its duty to honor Americans’ freedom of religion and conscience rather than coerce nuns, faith-based universities, Christian-run family businesses, and pro-life organizations to speak and live contrary to their own beliefs,” she said, according to Unruh.

The reference to nuns likely means Little Sisters of the Poor, a Catholic religious order that objected to the Affordable Care Act mandate to cover contraceptives without a co-payment in employee health insurance plans. The Obama administration created an exemption so that the insurer, not the employer, would pick up the cost, but the order objected to even handling the paperwork for that. No government policy requires Catholic hospitals, or indeed, any hospital or doctor, to perform abortions or gender-transition procedures. A problem for those seeking either type of procedure is that there are so few providers.

But there are professional standards of care and antidiscrimination laws that prohibit denying care to one person that's given to others or that the institution generally provides. And the new regulations allow for a broad interpretation of what constitutes participating in a procedure, civil rights leaders pointed out on a conference call with reporters today; for instance, could a receptionist who opposes abortion decline to make an ultrasound appointment for a woman to confirm fetal abnormalities? They also pointed out that there have been few instances of health care workers filing complaints about being forced to participate in procedures against their beliefs, but with the new rule and office, the Trump administration is actually encouraging the filing of complaints. Read the new rule here.

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