Trump’s bureau of religious freedom is the right move for health care

Critics contend the Trump administration’s creation of a Conscience and Religious Freedom Division within the Department of Health and Human Services (HHS) newly privileges private faith over public health. However, while the division would significantly expand enforcement of health-care providers’ free conscience rights, those rights are a longstanding, bipartisan feature of American law.

Faith-based health policy initiatives are not new. The Obama administration used its own HHS Center for Faith-Based and Neighborhood Partnerships to advance a health policy agenda — one that included spreading information about ACA enrollment — in conjunction with faith-based groups. Religious organizations and individuals will continue to be essential players in our health-care system.

{mosads}Policymakers on both sides of the aisle have long believed that health-care providers shouldn’t have to shed their religious freedom at the hospital door. The Affordable Care Act (ACA), for instance, offers freedom of conscience protections for providers who refuse to participate in assisted suicide or offer abortions. In the words of a 2010 Obama executive order interpreting the ACA, “longstanding Federal laws to protect conscience [such as the Church Amendment and the Weldon Amendment] remain intact and new protections prohibit discrimination against health-care facilities and health-care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.”

Statutory protections of the free exercise of religion go back even further. In the wake of a controversial Supreme Court decision that narrowed the scope of constitutional protections available to religious objectors, a nearly unanimous Congress passed and enacted the Religious Freedom Restoration Act (RFRA). RFRA prohibits the federal government from substantially burdening a person’s exercise of religion with even a generally applicable rule, unless the government demonstrates the burden 1) furthers a compelling government interest, and 2) is the least restrictive way of doing so.

In the 2014 Hobby Lobby case, the Supreme Court applied RFRA to exempt closely-held corporations from an Obama-era HHS mandate requiring employer provided health insurance to cover certain forms of contraception. The court highlighted the fact that the government could itself cover those specific contraceptives without impinging on the plaintiffs’ religious beliefs.

Reasonable accommodations are a necessary feature of an operationally sound health-care system in a nation of diverse moral preferences. Ensuring such accommodations in practice, however, was not a great concern for the Obama administration, which went so far as to take the nuns of the Little Sisters of the Poor to the Supreme Court about their objection to having to affirmatively opt-out of purchasing employee health insurance covering certain contraceptives.

The Trump administration takes a proactive approach to ensuring accommodations. The new HHS division and proposed rule provide for a substantial, arguably burdensome, regime for health-care organizations to demonstrate their compliance with existing federal conscience protections, including the aforementioned Church and Weldon Amendments, and provisions of the Affordable Care Act. To enforce these laws the new division may suspend federal funds that non-compliant entities receive from HHS. The proposed rule also broadly interprets the terms of existing protections, defining, for instance, what it means to “assist” in a procedure to include health industry workers beyond doctors.

While the breadth of enforcement is new, the idea that the HHS Office for Civil Rights (OCR), which houses the new division, should be in the business of protecting federal conscience rights is not. Regulations left intact under the Obama administration already designated OCR “to receive complaints based on the Federal health care provider conscience protection statutes.”

Many critics of the new division agree with the goals of free conscience protections but fear the initiative could put us on a slippery slope, leading to unjustified denials of care on the grounds of, among other things, a patient’s identity. Specifically, critics point to troubling potential gaps and ambiguities in federal antidiscrimination laws where sexual orientation and gender identity are concerned.

These gaps, however, predate this administration and its proposed rule. The Obama administration had attempted to patch these holes late in its final term, but only with an agency rule reading protections into the Affordable Care Act. A federal district court enjoined that rule in 2016, prior to the Trump administration, which was granted a stay in the case as it reconsiders the procedural propriety of the initial HHS rulemaking. As with the great civil rights acts in American history, addressing shortcomings in antidiscrimination law lies properly with the legislative branch.

Furthermore, as noted in HHS’s description, the Trump administration’s “proposed rule does not relieve OCR of its obligation to enforce other civil rights authorities, such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 … and the Americans with Disabilities Act of 1990.” This means the OCR could not become a vehicle for invidious discrimination based on race, color, national origin, sex, and disability, as proscribed by those statutes. Indeed, it would continue in its role as an enforcer of antidiscrimination law.

Those still unconvinced of the government’s ability to enforce religious freedom exemptions may wish to consider grounds on which HHS would be acting: provider receipt of HHS-administered funds. If accommodating diverse consciences in a publicly entangled health system gives one pause, perhaps so too should further government takeovers of health care writ large.

Jack Solowey is president of the NYU Federalist Society and a former health policy manager for the Manhattan Institute, a nonprofit group aimed at reducing the size of government.