The United States Department of Health and Human Services (HHS) recently announced the formation of a new “Conscience and Religious Freedom Division” which will sit in the HHS Office for Civil Rights. HHS says that this new 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.”
What does this new division really do?
This new division can be viewed as part of a stream of freedom of religion and conscience laws that have been passed in several states and offer legal protection to people who refuse services based on their religious beliefs. These laws have taken various forms, including Religious Freedom Restoration Acts (RFRAs). RFRAs have been passed by twenty-one states with many other states considering similar bills.
Specific exemptions for medical providers have been proposed or enacted in several states as well. Florida tried and failed to pass a bill that would have allowed religious health care facilities to refuse to “administer, recommend, or deliver a medical treatment or procedure that would be contrary to the religious or moral convictions or policies of the facility or health care provider”. In 2016, Mississippi passed a law that prevents the state government from pursuing discrimination complaints against organizations or individuals who refuse to provide counseling, sex-reassignment surgery, fertility treatment, and other services that are against their conscience or religious beliefs. Civil rights groups have challenged the constitutionality of the Mississippi law. Also in 2016, Tennessee passed a law that allows counselors and therapists to turn down treating patients based on “sincerely held principles”.
At the national level, conscience laws already exist, so while the new HHS division cannot act outside the current laws, it will increase enforcement of these laws. Health care providers will be able to file complaints with the HHS Office of Civil Rights if they believe that they have experienced discrimination because they have:
objected to, participated in, or refused to participate in specific medical procedures, including abortion and sterilization, and related training and research activities;
were coerced into performing procedures that are against a religious or moral belief; or
refused to provide health care items or services for the purpose of causing, or assisting in causing, the death of an individual, such as by assisted suicide or euthanasia.
What are the implications of the new division going forward?
This division as well as laws and regulations that allow doctors to refuse to treat patients based on their conscience and/or religious views have broad and severe implications for several vulnerable and underserved populations. HHS cites abortion, physician-assisted suicide and sterilization as examples of types of procedures that would be covered, but enforcement could extend to support health care providers in refusing to treat transgender and LGBTQ people. Transgender and LGBTQ people, people living with HIV, and others from marginalized communities already face stigma and several barriers to access to care, and this division opens up the door even further.
The division and the laws and regulations that it will help to enforce ultimately obscure the professional duty that healthcare professionals have to treat patients regardless of race, gender, sexual orientation, and gender identity.
This blog post was co-authored by Natalie Dobek, a second-year law student at Georgetown Law and a research assistant at the O’Neill Institute.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.