Lawful Discrimination: The Abuses of Religious Freedom in U.S. Healthcare

“I REALLY DON’T UNDERSTAND. I need my birth control or the pain becomes unbearable. They keep saying they can’t give it to me because this place is Catholic, but I don’t understand why that matters. I’m not Catholic! Why can they give me my depression meds but not my birth control?”

My mind was racing, trying to process all the details as they were relayed to me in a halting, dismayed voice. I gently worked to clarify the situation. Thinking through which partner to reach out to, I tried comforting the distressed caller.

As the outreach associate at Catholics for Choice, this was not an unusual conversation. People often called seeking help after mistreatment, facing denial of care at Catholic health institutions, seeking an abortion while dealing with stigma or shame, being fired because of their sexuality or being rejected as an adoptive parent. When it came to the true impact of religious institutions denying people their basic rights, I felt that nothing could surprise me.

But this was the first time I met a patient who was denied a refill of her birth control medication because she was in inpatient care for a mental health condition. It was one more log tossed on the growing conflagration of religious refusals.

WHAT’S IN A NAME?

The term “religious refusal” says everything, and nothing at all.

In legal terms, a religious refusal is derived from so-called “refusal clauses,” or the more genteel “conscience clauses.” These laws allow for individual health care providers, entities or organizations to refuse provision, coverage or even referral for certain services that conflict with their “sincerely held” religious or moral beliefs—while receiving federal or state money and resources to provide those services.

Religious refusal protections, such as various Church Amendments, were first passed in the wake of Roe v Wade to protect religious concerns about abortion care, sterilization or other procedures or services contrary to a provider’s beliefs. Refusals gained new life when the Religious Freedom Restoration Act became federal law in 1993. Originally passed to protect the free exercise of faith by minority groups like Indigenous peoples, RFRA was not drafted to give carte blanche to discriminate against others.

Despite the RFRA’s original intent, religious refusal protections now extend well beyond health care and into social services— programs for the homeless community, adoption and foster care, to name just a few. As more and more social welfare programs are privatized and contracted out by federal, state and local governments, often to religiously affiliated institutions and organizations, the potential for religious refusals has grown.

That sounds reasonable, doesn’t it? After all, everyone has a stake in ensuring people do not have to do things that conflict with their religious or moral beliefs. Freedom of religion is a foundational right we all value keenly.

In this context, however, the term and legal definition of religious refusals obscures the reality of the clause’s application. When weaponized by extremists to enact outdated and minority views on a whole nation, religious refusals aren’t just about individual belief and practice— especially in a multiethnic, multicultural, multifaith democracy.

The application of these clauses raises questions of balance. Far too often the balance t ilts toward far-right and extreme white, evangelical or Catholic understandings of faith and morality, and away from the rights, needs and conscience-based beliefs of women. It also puts a thumb on the scale for LGBTQ, disabled and poor people refused health care or social services because of someone else’s religious beliefs. Lives are harmed or risked by religious refusals, and the expansion of these refusals under the guise of religious freedom threatens millions.

UNEQUAL IMPACT

“Well, we try to tell people not to go there, to be honest. But it’s hard to get the message out to advocates. It’s one hoop to jump through to get people to go to the hospital at all, but to tell them to avoid the one in their community is another. They might not be able to get across town to the other one.”

I was in New Orleans, lunching with a nurse advocate for sexual assault victims. It was the beginning of what I hoped would be a new partnership in our Catholic health care work at Catholics for Choice.

With sexual assault victims denied access to emergency contraception while seeking rape kits and care at Catholic hospitals, religious refusals have quickly become a survivor justice issue. Catholic health care—or any institution, Catholic or otherwise, contracted with a Catholic institution—is bound by the Ethical Religious Directives. These directives are not medically informed, or even representative of actual Catholic belief and practice, and yet they drive how care is delivered at Catholic health institutions.

It was an ERD that prohibited the first caller in this story from obtaining birth control. It is also the reason victims of sexual assault are counseled against seeking care at neighborhood hospitals in parts of Louisiana: If the community hospital is Catholic affiliated, they will be denied treatment. ERDs are based on the U.S. Catholic bishops’ understanding of church teaching, such as that found in Paul VI’s 1968 encyclical “Humanae Vitae,” not the best medical care for patients.

Sexual assault survivors or women seeking miscarriage management often are told to “let nature run its course” before seeking medical assistance. People denied care or turned away from Catholic health institutions are not informed why. This hinders their ability to seek care elsewhere. Depending on the local bishop’s interpretation of ERDs, a doctor may not even be able to answer a patient’s question about where to seek the care they need.

What if you cannot go somewhere else for care? More than one in six hospital beds in the United States are in Catholic affiliated hospitals, according to Catholics for Choice’s 2017 Healthcare Report. If patients are low income and reliant on certain Medicaid programs, or if they lack access to a car or live in a rural area, they may not possess health care options other than Catholic institutions. This is doubly true for women of color, who more often rely on Medicaid or community health care providers— an increasing number of which are religiously affiliated.

Such scenarios expose the essence of religious refusals. They deny patients the ability to receive treatment in the health care settings most accessible to them. This became even more challenging during the pandemic, when people faced limited care options and COVID-19 protocols made traveling to multiple facilities especially difficult. Unfettered religious refusals create an equation in which putting an institution’s or individual’s belief over the needs of patients places patients at extreme risk during acutely vulnerable moments.

Just as insidiously, refusals impact those already burdened with navigating intersections of poverty, race, class or sexuality. A Black transgender woman may be denied hormone replacement treatment prescribed by her therapist if the only doctor in town feels providing it violates their religious belief. Because the pharmacist at her local CVS views certain medications as abortifacients and claims a religious objection to filling the prescription, an undocumented immigrant prescribed medication to end an unviable pregnancy might be refused care from the one nearby pharmacy with Spanish-speaking staff.

During the early days of the pandemic, a besieged New York City accepted the support of Samaritan’s Purse, an evangelical disaster relief organization. Tasked with running a surge site in Central Park, Samaritan’s history of LGBTQ discrimination on religious grounds concerned many city residents. Fears pervaded vulnerable communities that people already hard-hit by the pandemic could be barred from care due to their sexuality or gender presentation.

In these situations, religious refusals harm people already facing discrimination or systemic abuse. Religious refusals allow discrimination to be protected by law, often while the organization receives taxpayer money.

THIS IS NOT WHAT PEOPLE WANT

The majority of Americans (61%) oppose allowing doctors or other health care workers to deny treatment on religious or moral grounds, according to a 2017 survey commissioned by the National Women’s Law Center. Health care providers pledge to do no harm, and almost two-thirds of Americans expect that providers honor that commitment, regardless of someone’s personal beliefs.

Conflating discriminatory action with religious practice, the far-right has warped the religious liberty clause, turning it into a cause célèbre for millions. Religious refusals have become a cudgel in culture war fights, many of which end up before an increasingly conservative Supreme Court. In 2020, t he Supreme Court sided with employers to allow broad exemptions from the Affordable Care Act’s birth control benefit, citing religious or moral objections.

Many such religious institutions are not interested in balancing the needs of vulnerable communities with their religious practice. This is a battle between what they see as a project of social transformation they oppose and the advancement of democracy, constitution and public demand. They hide their bigotry behind the guise of religious practice denying millions of women, LGBTQ people and others autonomy, dignity and equality.

Until they personally experience being denied care or services, most Americans do not realize the vastness of these exemptions. It is critical that everyone begin to understand the true nature of religious refusals and the damage they cause. Liberals and progressives must not shy away from religious liberty clauses and instead make faith based counterarguments that center the spiritual value of equity and common good. The Biden-Harris administration supports the Do No Harm Act, reintroduced in Congress in late February. Do Not Harm legislation would apply a fix to RFRA that would protect minority religious rights and ensures religion cannot be used to discriminate.

We can balance protecting our moral or religious beliefs with providing access to care and services. But our laws and leaders must stop centering only one aspect of this issue while eroding the rights and conscience-based decisions of individuals.