Nurse Cathy Cenzon-DeCarlo had worked for five years at Mount Sinai Hospital in New York City when the demand came one morning in 2009 for her to assist at a late-term abortion. She balked. Cathy was pro-life. She became a nurse to save lives, not take them. She immediately reminded her superior of the conscience claim she asserted at hire: "I don't do abortions." Ignoring her tearful plea, her superior claimed the woman's life was in danger, accused Cathy of insubordination and abandoning her patient, and threatened her with dismissal if she refused the demand.
Cathy was stuck in an impossible situation. She believed abortion was wrongful killing and that it would be wrong to assist in such killing. But as a Filipina immigrant, she couldn't afford to lose her job. Reluctantly complying with the coercive threat, she watched as the healthy twenty-two-week old fetus was dismembered. She was then required to reassemble the mangled body to ensure all the parts were accounted for: "It was like something out of a horror film."
Cathy's case reminds us of why conscience protections are important.
In this essay, I do three things. First, I review the recent history of conscience laws protecting healthcare workers in the United States. Second, I explain encouraging initiatives of the Trump administration to strengthen both those laws and strengthen religious liberty. Third and finally, I comment on recent legislative attempts to widen their scope and make them permanent.
In 2007, the "Committee on Ethics" of the American College of Obstetricians and Gynecologists (ACOG) formally went on record opposing the rights of healthcare workers to conscientiously object to participating in abortions. After reducing an appeal to conscience to a self-referential "sentiment" that delivers messages no more substantial than "If I were to do 'x,' I could not live with myself / I would hate myself / I wouldn't be able to sleep at night," the committee asserted that a provider's "primary duty" is to respect "the pregnant woman's autonomous decisions," then recommending as policy that in emergencies, practitioners should be compelled to provide elective abortions "regardless of the provider's personal moral objections."
At the end of his second term, aware of the growing threats to conscience, President George W. Bush proposed federal regulations that would more effectively implement existing federal laws protecting the rights of conscience in healthcare. These laws, collectively known as the Federal Health Care Conscience Protection Statutes, include the Church Amendments (enacted throughout the 1970s in response to Roe), the Coats/Snowe Amendment of the Public Health Service Act § 245 (PHSA) (signed by President Bill Clinton in 1996), and the Hyde-Weldon Amendment (attached to Labor/Health and Human Services [HHS] appropriations bills since 2004). Together, they prohibit:
Surprisingly, existing provisions do not afford victims of discrimination the right to take legal action against violators. Instead, enforcement of conscience laws in healthcare is left to HHS.
If these wide-ranging laws were already on the books, why did the Bush administration propose new guidelines? The administration claimed HHS had received multiple allegations that, despite the generous protections guaranteed by these conscience statutes, individuals and institutions were still being coerced to participate in abortions (see the Cenzon-DeCarlo case). An HHS investigation found widespread intolerance toward conscience in the field of healthcare and an atmosphere of dismissiveness toward certain religious beliefs, cultural traditions, and moral convictions, despite the apparently robust laws on the books. Thus, the new guidelines were necessary to ensure the federal government enforced the existing laws.
In December 2008, the Bush conscience regulations were issued. Two months later, the new Obama administration published a proposal to rescind the regulations. It insisted that upholding conscience in healthcare was not a problem, denied the need for new regulations, inveighed against the harm that would be done to women who might be prevented from having wanted abortions, and recommended non-regulatory means ("outreach and education") for upholding conscience laws.
During the long Obama winter, the federal government mounted additional attacks against conscience, in healthcare and elsewhere. The most prominent, of course, was the introduction of the HHS contraception mandate as a regulation under the Affordable Care Act. Donald Trump campaigned on a promise to "religious" and "conservative" voters to protect conscience rights in healthcare and other areas of public life.
In May 2017, President Trump issued an executive order stating his administration's intent to make good on his campaign promise. He vowed to enforce existing federal protections for religious liberty, to ensure that individuals and entities were not penalized for speech about "moral or political issues from a religious perspective" (speech of a similar sort had ordinarily not been considered a violation of the prohibition against tax exempt organizations' participating in political campaigns), and to amend federal regulations to address conscience-based objections to the HHS mandate.
In October 2017, Trump directed Attorney General Jeff Sessions to issue new guidelines for interpreting, implementing, and enforcing conscience protections in federal law. The extraordinary set of guidelines is framed in terms of protections for "religious liberty," a strategic maneuver used in earnest since around 2009 when HHS Secretary Kathleen Sebelius first began talking of "essential services" to be covered by government-sponsored healthcare. But the guidelines are certainly meant to extend to the protections guarded by the Federal Health Care Conscience Protection Statutes.
The text presents twenty principles that it says should guide the federal government in reasonably accommodating "to the greatest extent practicable" religious belief and practice "in all government activity." The principles assert that the free exercise of religion includes the right to act or abstain from action in accordance with one's religious beliefs. This extends both to individuals and to organizations (not only to churches, but to schools, private associations, and businesses). It also extends to those who provide or receive social services, education, or healthcare and to those who receive government grants or contracts.
The principles likewise assert that the government may not exclude religious organizations from receiving federal aid when the aid is not used for explicitly religious activities. Nor may government prevent religious schools from participating in voucher programs, so long as the aid reaches the schools through the independent decisions of parents. The IRS may not prohibit religious nonprofits from intervening in political campaigns on behalf of a candidate under circumstances in which it would not prohibit a secular nonprofit organization.
Principles ten to fifteen pertain to the 1993 Religious Freedom Restoration Act (RFRA), which "prohibits the federal government from substantially burdening any aspect of religious observance or practice, unless imposition of that burden on a particular religious adherent satisfies strict scrutiny." They say this applies not just to individuals, but also to organizations and at least some "for-profit corporations, such as Hobby Lobby." They prohibit the government from "second guessing" "the reasonableness of a religious belief," and, as an example, refer to "the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization's religious precepts."
As examples of "substantial burdens" the principles include banning acts of religious observance, compelling acts inconsistent with observance, or imposing substantial pressure on adherents to alter their observance, such as that "a Department of Health and Human Services regulation requiring employers to provide insurance coverage for contraceptive drugs in violation of their religious beliefs or face significant fines substantially burdens their religious practice." They state that RFRA's "strict scrutiny" standard is "exceptionally demanding":
Only those interests of the highest order can outweigh legitimate claims to the free exercise of religion, and such interests must be evaluated not in broad generalities but as applied to the particular adherent. Even if the federal government could show the necessary interest, it would also have to show that its chosen restriction on free exercise is the least restrictive means of achieving that interest.
RFRA's protections even apply, we are told, when a religious exemption deprives some third party of a "benefit" otherwise protected under law.
The guidelines end by directing federal agencies engaged in rulemaking and enforcement to pay keen attention - "in everything they do" - to these itemized rules.
The 2008 Bush conscience regulations were well-intentioned but last-minute. As a result, the initiative didn't allow for the institutionalization of the processes it guaranteed. The guidelines had hardly taken effect when the new president took office. Consequently, their dismantling received relatively little public notice.
Resolute to avoid this outcome, the Trump administration in January 2018 established in the HHS Office for Civil Rights (OCR) a new government agency called the Conscience and Religious Freedom Division. Its purpose is to "vigorously and effectively" enforce existing laws protecting conscience and religious freedom in general, and especially in healthcare. On its website, the agency lists the Church Amendments, the PHSA, and the Hyde-Weldon Amendment as among the statutes the new division aims to protect.
As erected by a presidential order, the new division's continued existence - like that of the Bush regulations - is subject to the good will of future presidents. Nevertheless, the new office, with its procedures for filing complaints against violations of conscience and religious freedom, will have time to take institutional root during the remainder of Trump's first (and possibly second) term, which will make it more difficult for future presidents to dismantle.
The Trump administration has also proposed new conscience regulations to invest OCR with the authority "to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints." The teeth that the 2008 Bush regulations intended to give to the nation's conscience laws will be sharper than ever before.
Ultimately Congress needs to pass permanent laws protecting the conscience claims that are now secured by presidential initiatives or by statutes on a year-by-year basis. Unfortunately, the Conscience Protection Act (CPA), which would make permanent the Hyde-Weldon protections and guarantee to victims of discrimination the right to take legal action against violators, has been held up in committee for over a year in both the House and Senate. There was some hope that Congress would tie the CPA to the congressional funding bill for fiscal year 2018, but the CPA was excluded, despite support from the House Speaker, while Planned Parenthood again won the jackpot.
We also badly need legal protections for citizens committed to traditional marriage. Unfortunately, Trump's Executive Order was largely silent on this issue, and the First Amendment Defense Act, originally introduced in 2015, has also experienced slow going in Congress. It has been vociferously opposed by LGBT groups on the grounds that it is "anti-gay." It protects individuals who act "in accordance with a religious belief or moral conviction" that marriage is a union of one man and one woman or that sex belongs in such a marriage. It prohibits the federal government from penalizing such individuals through the imposition of taxes, the revocation of tax exemptions, the denial of federal grants or contracts, or the withholding of government benefits to which they'd otherwise be due. It also, like the CPA, grants victims of discrimination the right to go to court and claim relief from the federal government if it doesn't abide by the law.
Although the snail's pace of these bills is disappointing, the news for conscience is still very good. The number of institutions - hospitals, health clinics, pharmacies, ambulance services - that will come under the new HHS conscience regulations is very large ("as many as 750,000"). These will be subject to the increased emphasis on compliance with existing laws and subject to complaints and legal liability facilitated through the new Office of Conscience Protection.
As we have seen, the protections for conscience and religious liberty have been intertwined. It may be the case that the new initiatives will extend wide enough to protect those in healthcare who wish to conscientiously object for reasons of "religious belief or moral conviction" from services related to patients' sexual identity, especially from participating in sex reassignment procedures. The new provisions do not specifically address this question, but they are sure to be put to the test before long.
The claims of conscientious Americans to refuse to carry out what they reasonably judge to be evil actions without grave repercussions are not yet secure in the US - better off than under Obama, to be sure, but far from comprehensively protected. This is most especially the case with conscience claims against participating in the brave new world ushered in by Obergefell and the previous president.
Legislation protecting citizens from being forced to cooperate in the LGBT culture must be passed by this Congress. Few expect the GOP to gain seats in the House or Senate in next fall's midterms. What happens if it loses control of one or the other? When will an all-conservative government again control Washington?
Although the genie of same-sex marriage is not going to go back into the bottle, the spirit of religious liberty still has a fighting chance. But make no mistake. If that spirit isn't given a statutory voice soon and very soon, not only Catholic hospitals but also Christian schools and businesses of every sort owned by Christians will find themselves in the bullseye of an ever-expanding circle of hostility.