Will New ‘Religious Freedom’ Rules Allow Bias?


Under federal regulations proposed last week, a hospital aide could refuse to wheel a patient to her car after she receives an abortion. A hospital clerk could choose not to process the paperwork of a patient who had her tubes tied after giving birth.

The Trump administration created a new division of the Department of Health and Human Services (HHS) called the Conscience and Religious Freedom Division last Thursday. It would ensure that health care providers and their agents would not be penalized for refusing to perform such tasks based on religious or moral objections. Hospitals that refuse to comply could lose their federal funding.

The draft regulations are 216 pages long and came as a surprise to many, according to Jody Rabhan, director of the Washington operations at the National Council of Jewish Women.

“HHS issued them without anyone knowing about it,” she said. “Staff and relevant agencies were caught off guard.”

The department did not reply to an email query seeking further explanation about the proposal.

There is now a 60-day comment period after which there will be a review of comments and then a rule issued.

David Barkey, religious freedom counsel for the Anti-Defamation League, said that although the ADL and other “Jewish groups strongly advocate for reasonable accommodation of religious objections, there can be no infringement on the rights of others — which is the case here. And it allows others with no connection to medical procedures to opt out without any penalty.”

“It undermines the treatment of women and the LGBTQ community and does not balance religious freedom with other civil rights.”

The new regulations, he added, would cover those who “assist in the performance” of a medical procedure — “as long as the person is part of the staff. Thus, a receptionist could refuse to provide the phone number of a clinic that performs abortions. And what if you are applying for an HIV program — it opens the door to not treating anyone who is gay. … It undermines the treatment of women and the LGBTQ community and does not balance religious freedom with other civil rights.”

Currently, work places are permitted to accommodate healthcare providers’ religious and moral beliefs as long as they do not present an undue hardship to a third party. But Rabhan said the new proposed regulations “appear to sanction discrimination. … The rules are incredibly broad and are another notch in the administration’s belt as it goes after abortion and transgender rights — trying to deny them what is available under the law.”

She pointed out that last October the Trump administration issued regulations that permitted for-profit businesses to claim a moral or religious objection to providing no-cost contraceptive coverage under their employee health insurance plan.

“This is an attempt to take the teeth out of what we have in the current law regarding providing reproductive health care for women and for transgender folks,” Rabhan said. “What they can’t do legislatively they are doing through regulations, new divisions and executive orders. We’re seeing a clear trend of enforcement policy towards a complete denial of care to those who are most in need. There is no doubt about it.”

Rabhan noted also that last fall the Department of Education rescinded an Obama administration directive and said that schools no longer have to allow transgender students and staff to use the toilet of their choice.

Eric Fusfield, director of legislative affairs for B’nai B’rith International, said it is too early to know how the new regulations will be implemented.

“This is an attempt to take the teeth out of what we have in the current law regarding providing reproductive health care for women and for transgender folks.”

“We’ll monitor the situation and see how it develops,” he said. “Will it work to balance the religious and conscience beliefs of medical professionals with the rights of patients who require services and with employers whose function it is to provide the services? Or will the office legitimize discrimination against women and LGBTQ people? That is the question.”

He noted that the Trump administration has “already taken protections away from transgender students, military personnel and employees, and the concern is that this is another area of transgender life where transgender people might be impacted. Gender reassignment surgery, for example, and the medicine they require. That is the fear.”

B’nai B’rith International’s longstanding policy, Fusfield added, is that the “rights of employees should not supersede the rights of patients who need treatment. … If a pharmacist objects to dispensing birth control pills, the pharmacy must assign a co-worker to dispense the medication in his place because the woman who needs it must be able to receive it. We would like to see legislation that would guarantee the balancing of rights.”

Nancy Kaufman, CEO of the National Council of Jewish Women, noted in a statement that under the proposed rule, HHS “would initiate audits of federally-funded programs (including state programs), mandate new recordkeeping and reporting requirements, and ‘use enforcement tools otherwise available in civil rights law to address violations and resolve complaints.’ That HHS could seek to void state-level protection is unconscionable.”

“Religious freedom should not be confused with a license for hatred and discrimination.”

David Bernstein, president and CEO of the Jewish Council for Public Affairs, voiced similar sentiments and observed in a statement that health care professionals are currently allowed to refuse to carry out certain procedures for religious reasons.

“It is critical that any new policies do not lead to discrimination or interfere with a patient’s right to make informed decisions about what is best for them,” he said.

The Jewish Democratic Council of America said in a statement: “Religious freedom should not be confused with a license for hatred and discrimination. Only an unprecedented and partisan understanding of religious liberty could lead one to think conscience protections cover the right of individuals acting in a professional context in non-sectarian institutions to refuse care to patients based on their identity.’

Rabbi Jack Moline, executive director of the Interfaith Alliance, which is dedicated to protecting the boundaries between religion and government, called the proposed rules “a travesty and a complete inversion of the protections of the constitution.”

“The stakes are higher here, but the principle is the same.”

“It is the rule of law in this country that counts and not the personal objections of any individual, no matter how strongly felt,” he said. “If there is a Supreme Court ruling or if a piece of federal legislation allows certain medical procedures to take place, and if the provider – a hospital or a practice – is willing to provide other medical services that are legal, selectively withholding medical care on the basis of personal preference is the opposite of the rule of law. … That is anarchy. It does not matter how passionate an individual is about his beliefs, you don’t get to say: ‘I am exempt from the requirements of the law.’”

Rabbi Moline compared this to the county clerk in Kentucky who refused to issue a marriage license to a gay couple. The couple sued and won and was issued a marriage license by another clerk.

“The stakes are higher here, but the principle is the same,” the rabbi said.