Religious "liberty" laws are some of the most pernicious, damaging, and ultimately insincere types of legislation to be found. Now the Trump Administration has decided to take this favorite of the political extreme right and entrench it in medicine, which could undercut the ability of many to receive timely medical treatment.
Many might argue this won't do real harm, as there are always other providers and that the rights of medical personnel are in jeopardy. However, those rights are still well protected and the presumption of availability of alternative care is a callous dismissal of citizens' right to life, particularly those who, because of income inequality, lack the resources for prompt other arrangements. In addition, the move helps promulgate a concept that has in the past protected many forms of racism, religious bigotry, class inequity, and gender inequality and likely would again.
The official portrayal
The Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) today announced its "Conscience and Religious Freedom Division". Here is the official rationale, according to the HHS website post:
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.
In addition came the following:
OCR Director Severino said, "Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. 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."
Incorrect assumptions of the rationalization
The Trump Administration explicitly and implicitly assumes a crisis of religious freedom in the country. The assertion is that people somehow are not able to enjoy their First Amendment rights to both freedom of worship and freedom from the explicit or implicit establishment of a state-sanctioned religion.
But the statement twists the constitutional concept. The right does not include the ability to impose one's religious views onto another. It does not allow direct or indirect religious tests on someone else's rights (other than in a clearly and specifically religious setting), including the ability to function in society as a full citizen. The entire point of the Civil Rights Law of 1964 and many other statutes was to ensure that people would not face discrimination in their lives, including in commerce, housing, and education and as a result be forced into a second-class status.
In that fuller understanding, there is no loss of personal conscience by medical personnel. For example, doctors are not forced to perform abortions. At least as of 2011, only 14% of ob-gyns performed the procedure and 87% of counties had no provider of abortions. Neither are plastic surgeons required to perform gender realignment surgery. No one ties the hands of internists to lethal injections to aid in suicide. Nurses and other types of medical professionals are free to work or not at institutions offering such services.
The hidden danger
More generally, neither doctors, nurses, nor others who provide any sort of non-religious service to the public should regulate the private activities, beliefs, or lifestyles of people as a precondition of treatment.
To give people such power enables clear civil rights violations through the conflation of religion with prejudice. It was only 55 years ago that a shop owner could refuse to serve someone who was Black or Asian or Jewish or Muslim. This was a time when it was considered revolutionary for a Catholic to have been elected president.
"Religion" or "conscience" frequently is a cover for personal preference. Many racists historically used religion as a justification of their bigotry and exclusion, as Karl Gilberson, a Stonehill College professor of science and religion has noted. Here is one 1971 example he offered:
The fundamentalist Bob Jones University in South Carolina proudly flew the racist torch as long as possible until it was forced by the IRS to integrate in 1971 or risk losing its tax exemption. It complied by admitting only married blacks to discourage racial mixing. It was not until 2000 that the University, in the midst of a great uproar, reversed its policy on interracial dating. Bob Jones Sr., the university’s founding president, had famously said, "White folks and colored folks, you listen to me. You cannot run over God’s plan and God’s established order without having trouble. God never meant to have one race. It was not His purpose at all. God has a purpose for each race."
"Religious" sensibilities have been used more recently as an excuse to discriminate against the LGBTQ community, as if a deity had declared that a "believer" must not bake a cake for someone who is gay but sanction satisfaction to liars, adulterers, thieves, rapists, and murderers. The lack of broad inquiry to determine whether someone is sufficiently pure for commerce based on all the requirements of a religion or moral code shows how the question issue is truly one of prejudice and not religious conviction. The issue isn't one of theory. As the National Women's Law Center has reported, many LGBTQ individuals with HIV or AIDS have faced discrimination in obtaining healthcare.
And, if you are or know anyone who is Muslim or Jewish, ask them about discrimination.
We as a country have used commerce as a tool to help control at least some of the most overt forms of racism.
Lives in peril
A bad idea in any context, this attempt to curry favor — and votes in what is predicted as a difficult election year for Republicans — in the medical field is particularly heinous. Many circumstances require timely treatment to make the difference between health and permanent impairment. In a literal sense, quick response is often a demarcation, with life on one side and death on the other.
For someone is rushed to the emergency room, such "rights" would allow a triage nurse to refuse treatment for whatever reason, so long as prejudice and ill-will stay cloaked as a matter of conscience or religion. The doctor on call could require the patient to wait until someone else of a more favorable disposition was summoned.
Even in less precarious circumstances, the ability to refuse treatment, no matter what the excuse, could cause increased harm with delay. Many who have survived a cancer diagnosis can attest to the need for rapid action. Not all types of help are broadly available and finding another provider could easily cause significant lost time and increased inconvenience, as presumably the medical personnel in question wouldn't automatically know that they were being asked to tend to someone who in their view was an untouchable.
For those of low or moderate income, there is the additional burden of resources. They may not have transportation to another treatment venue — may even not have ready internet access to find an alternative at a time of need. Such "rights" legislation also doesn't differentiate between personnel at private facilities and publicly-funded ones. Professionals at a typical city hospital with a heavy proportion of patients hurting fiscally as well as physically could cause particularly grievous results with no option for executives to discipline or remove the uncooperative.
This move is not surprising. In this particular election year, the attempt to encourage the dismissal of those who are "unclean" by personal and subjective religious definition is nothing but pandering. Let us hope the courts put a halt to such poorly-considered strategies of ill will before too many suffer as a result.
