New HHS agency: Protecting religious liberty, or attacking LGBT health?

Do patients have the right to demand abortions from every medical practitioner? Do doctors and nurses have the choice to refuse care to people based on their sexual orientation? The answer to both of those questions should be no, and the Trump administration addressed at least one half of the issue today. Acting HHS Secretary Eric Hargan announced the establishment of a new division that will act to protect religious conscience rights among caregivers, a stark contrast from the heavy-handed mandates of the previous administration on issues such as free contraception:

Social conservatives and religious liberty leaders have anticipated conscience and religious freedom protections to come out of HHS, and the work of the new division, which will fall under the purview of the Office of Civil Rights, will likely pave the way for health care workers to refuse specific types of care, like birth control or abortion, based on their religious or conscience objections. …

Acting Secretary of HHS Eric Hargan made the announcement and was joined by Roger Severino, director of the Office for Civil Rights at HHS, House Majority Leader Rep. Kevin McCarthy, R-Calif., Rep. Vicky Hartzler, R-Mo., co-chair of House Values Action Team, and Sen. James Lankford, R-Okla.

“President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom,” said Hargan. “That promise is being kept today. The Founding Fathers knew that a nation that respects conscience rights is more diverse and more free, and OCR’s new division will help make that vision a reality.”

It didn’t take long for critics to object, calling it an attack on the LGBT and pro-choice communities:

Democratic Sen. Patty Murray of Washington was quick to criticize the administration’s decision to create the new office.

“This would be yet another attempt to let ideology dictate who is able to get the care they need,” Murray said in a statement. “Any approach that would deny or delay health care to someone and jeopardize their wellbeing for ideological reasons is unacceptable.”

Politico also reported on the objections, as well as the demand for protection:

“This is the use of religion to hurt people because you disapprove of who they are,” said Harper Jean Tobin of the National Center for Transgender Equality. “Any rule that grants a license to discriminate would be a disgrace and a mockery of the principal [sic] of religious freedom we all cherish.”

However, advocates of conscience protections say that new accommodations for caregivers are long overdue. “Conscience violations continue to occur, and it is critical that the administration responds appropriately,” said Melanie Israel of The Heritage Foundation. “Ensuring that HHS funds do not support morally coercive or discriminatory practices or policies in violation of federal law should not be remotely controversial.” …

The Obama administration in 2011 rewrote a series of Bush-era protections designed to protect the moral and religious beliefs of health care workers. Opponents of the Bush rules argue that they were too broad and could have allowed workers to opt out of end-of-life care, providing birth control and treatment for HIV and AIDS. For instance, some workers cited their moral objections when denying fertility treatment to lesbian couples or not providing ambulance transportation to a pregnant woman seeking an abortion.

But supporters of the conscience protections say the Obama administration left objecting workers out to dry, liable to be fired for refusing to assist in abortions.

“To be forced under pain of losing one’s job is just outrageous,” Rep. Chris Smith (R-N.J.), co-chairman of the Bipartisan Congressional Pro-Life Caucus, said last week. President Trump is “now looking to remedy that through the HHS mechanism — hasn’t happened yet, but it will.”

In other words, there seems to be a lot of hyperbole over what is actually a balance between care and mandatory participation in specific acts. Even during the Bush era, doctors and other providers were not allowed to hide behind religious objections to deny care to people simply on the basis of their sexual orientation. In fact, the Obama administration imposed mandates where the issues were almost entirely anecdotal if not altogether hypothetical.

This seems to be a similar issue to the passage of Religious Freedom Restoration Act (RFRA)-style laws at the state level. Opponents argued that the existence of the law would allow anyone to discriminate against entire classes of people, but RFRA didn’t do that at all. All it provided was a higher level of scrutiny on government action in forcing people to act against sincerely held religious beliefs.

In truth, doctors should not be forced to perform abortions if they consider human life to begin at conception, whether that’s a religious scruple or simple human science. Surgeons should not be required to perform gender reassignment surgery if they feel it violates their religious beliefs or their medical judgment. There are plenty of other providers who will fill that gap without imposing dictatorial mandates to force everyone to comply with whatever Groupthink is dominant at the moment. Why anyone would want to force providers to perform surgical procedures against their will is beyond answering anyway.

On the other hand, there should be no controversy about providing regular care for all patients regardless of immutable characteristics such as sex, race, or orientation. Doctors can easily refer patients to other providers for those requests to which they personally object and provide other care as needed. The Office of Civil Rights will have to take that mandate seriously too, but it is not in conflict with protecting the legitimate conscience rights of providers. Liberty is not a zero-sum game.