Religious Refusals: A License to Discriminate

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A religious refusal is when a healthcare provider (such as a doctor, nurse, CEO, receptionist, or member of a hospital board) refuses to provide or facilitate healthcare because it goes against their personal religious beliefs. This most often impacts services like abortion, miscarriage management, contraception prescriptions/procedures, HIV/AIDS treatment, and hormone therapy that women and LGBTQ+ people disproportionately require. Healthcare providers can ever refuse to provide information about healthcare conditions or referrals for appropriate care. Refusal to provide information and services translates to discrimination based on identity and orientation, and can put a patient’s life in danger. Rachel Easter from National Women’s Law Center discusses religious refusals and how they are shaping the world of healthcare.

Religious refusal laws aren’t new- in fact, they’ve been around for 45 years. These laws allow healthcare providers to deny at least some forms of care based on personal beliefs. The most famous example is the Weldon Amendment (an amendment that’s added to the annual federal appropriations bill each year). This amendment makes it possible for hospitals, insurance companies and providers to refuse to provide, pay for, or refer abortion services. 

The Trump administration has targeted access to healthcare by explicitly supporting the ability to refuse care based on religion. A recently-signed religious freedom executive order under this administration has made it easier for healthcare providers to discriminate against patients, and the Department of Health and Human Services (HHS) has therefore implemented new rules and regulations that expand religiously-rooted discrimination in the healthcare field. In fact, HHS reached out to religious hospitals around the country and asked for feedback on ways in which they could better protect healthcare workers who wish to refuse service. By the end of January, the administration proposed sweeping new rules that medical providers could object to providing ANY healthcare that violated their moral or religious beliefs.

HHS has also recently created the Conscience and Religious Freedom Division, which is solely focused on protecting healthcare providers that want to use personal belief to deny patients care. This has overtly shifted the concern from the rights of patients to rights to deny service. 

Individuals who already face barriers to accessing healthcare are the most impacted by these refusals. 8% of LGBQ and 29% of transgender patients have reported that a doctor or healthcare provider refused to see them due to gender identity or sexual orientation in the last year. And those seeking access to abortion already must navigate a complex labyrinth in order to receive care—meaning religious refusals will make it even more difficult.  

Links from this episode

National Women's Law Center
National Women's Law Center Twitter
National Women's Law Center Facebook
Trump is Using Judicial Nominations to Advance His Anti-Woman, Anti-LGBTQ Agenda
Refusals to Provide Health Care Threaten the Health and Lives of Patients Nationwide

Transcript

Jennie: Welcome to rePROs Fight Back a podcast on all things repro. I'm your host Jennie Wetter. In each episode, I'll be taking you to the front lines of the escalating fight over our sexual and reproductive health and rights at home and abroad. Each episode, I will be speaking with leaders who are fighting to protect our reproductive health and rights to ensure that no one's reproductive health depends on where they live. It's time for repros to fight back.

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Jennie: Welcome to rePROs Fight Back. On this week's episode we are going to talk about religious refusals. So helping me dig into this complicated topic, I'm really excited to have Rachel Easter with the National Women's Law Center here with me today. Welcome Rachel, and thank you for being here.

Rachel: Thanks so much for having me.

Jennie: So let's start at the beginning. What are religious refusals?

Rachel: So a religious refusal is when a health care provider, which can be anyone from your doctor to the hospital CEO to the receptionist that schedules your appointment, when that health care provider refuses to provide or facilitate your care because it goes against their personal or religious beliefs.

Jennie: Okay, so it hasn't, my religious beliefs don't get taken into account then or my need for the service?

Rachel: No, it's entirely dependent on their beliefs. Their beliefs are determined are what determines the care that you receive. And as you can imagine, this is often for services that women and LGBTQ folks either exclusively or disproportionately need. Things like abortion, birth control, transition related medical care, HIV care, or refusals to even provide someone because of their identity.

Jennie: So I know these aren't anything new. I actually first encountered them when I was in college. I had roommates who were going into the health care field and I remember having conversations with them and them saying they weren't going to treat gay people or people with HIV. And I just remember being so shocked that this was a thing. So these aren't new?

Rachel: No, these are not new. In fact, we've actually had laws on the books for nearly 45 years, allowing health care providers to refuse to provide at least some forms of health care. As I said, often targeting things like abortion and sterilization. Maybe the most famous is something called the Weldon amendment. And that's actually added to the annual funding bill that Congress passes every year. It's been there since 2005 and it says that health care entities ranging from doctors to hospitals to insurance companies can refuse to provide, refer for, pay for, or cover for an abortion. And as a result of the Weldon Weldon Amendment, we've seen women across the country turned away. And of course the amendment has nothing in it saying, you know, we have to protect patient access to care. In fact, if a state tries to pass a law protecting patient access to abortion or sterilization, they could potentially risk losing millions of dollars in critical federal funding because of that law.

Jennie: How would you see this manifested? Or how have women been impacted?

Rachel: Yeah, so we see all sorts of forms of refusals. We see these straight up sort of you go and see your doctor and they just don't give you the care that you need. So, um, an example of that would be a woman who is later in pregnancy. She's experiencing a lot of pain. She goes to the emergency room and it's clear that she's going to miscarry. But the hospital refuses to provide her with the care she needs because they consider it an abortion. Not only can they refuse to provide her with that care, but they can refuse to tell her another place she can go and get it. They can just say, hey, you're in pain, go home. She then has to live with her pain and potentially risks infection, which can risk in fertility or even death. So it can be a straight up as you go see your doctor and they don't give you the care that you need. It can be, um, a woman who goes to a pharmacy to fill a prescription for emergency contraception after she's been raped. And the pharmacist can say, no, emergency contraception goes against my religious beliefs. I'm not going to fill that prescription for you. Or it could be a, you know, an individual who, um, you know, a lesbian couple that they want fertility treatment in order to have a baby. And the doctor says, no, I, I'm opposed to that because of your lifestyle or because of your identity. Um, and you know, the other really famous example of religious refusals that your listeners may be, uh, maybe familiar with is the employers wanting to refuse to provide insurance coverage to their employees. That includes birth control.

Rachel: You know, so this is the famous Hobby Lobby case, where a companies and nonprofit organizations said it violates my religious beliefs that your insurance coverage includes this. And so they'd been trying to refuse to comply with the Affordable Care Act's Birth Control Benefit.

Jennie: All of these sound really hard to deal with. I mean, if you're miscarrying and you don't know that the treatment you need is an abortion because they're not telling you you aren't going to go look for care elsewhere.

Rachel: Yeah, exactly. It's, it's really horrifying. And we know that there are situations where women have, um, lost their fertility because they didn't go seek the treatment they needed. We also have heard these stories of situations where a woman seeks this treatment at a religiously affiliated hospital and her, the doctor she actually sees, wants to provide the care and he is not allowed to. He will lose his job if he does that. And so we actually have a couple stories of situations where they told the woman, this is the care you need. And one doctor even says he put a woman in a cab and gave the cab driver $70 to get to the closest hospital that would provide her with that care. And that's one of the better outcomes.

Jennie: A lot of people don't know, right? You see that there's a St Mary's in your town and, and that's a little clearer, but you still might not know that you're going to have access to certain types of care blocked. But you're also seeing a lot of hospitals get taken over and without a name change. And so you don't even know if you were originally aware that Catholic hospitals effect or just religiously affiliated hospitals block certain types of care. You might not even know that that hospital is religiously affiliated.

Rachel: Yeah, that's absolutely right. We know that, um, I believe it was in 2014 that one in six hospital beds in the country, uh, had to comply with the Catholic directives dictating what type of care that hospital could and could not provide. That as you said, it may not be named something like St. Mary's because it could have merged with a Catholic hospital and still have a regional name or be named the county hospital. In addition, we see that more and more hospitals are buying up or controlling practices within the town. So you might not even be at a hospital. You might think that you're at a private practice that your doctor runs and they're still bound by the hospital. And this is particularly egregious in rural areas, small towns where there may be only one hospital that you can go to. So now you've gone, the only place there is, they haven't even told you what the right care is for you and they've just sent you home. You're really out of options.

Jennie: And it is not just abortion, it affects access to sterilization if that's what you want. They might not tell you all the forms of birth control you can get. Um, this has a lot of impacts.

Rachel: Yeah, that's absolutely right. Like I said, it is, it is targeting services that women, LGBTQ folks need, you know, and it's about objections to those services, but also just objections to, to those people and their identity and just trying to impose additional barriers to getting care.

Jennie: You know, we talked a little bit about how they have already affected patients. So early in this administration there was an executive order on religious freedom. Can you tell us a little bit about that and what that, what it's gonna do?

Rachel: Yeah, absolutely. So the Trump administration over the last 15 months has really made this targeted attack on access to health care. And it's really using religious refusals to do that. So first we saw this, um, executive order and in that executive order, basically they said agencies need to make it easier to discriminate based on religious beliefs that applied to health care. But it applied across many of the federal agencies. And so then from there we've seen that agencies like Health and Human Services are using that as a reason to implement these new rules and regulations that expand discrimination in the name of religious beliefs. Uh, so one example of that would be the interim final rule undermining the birth control benefit. Uh, but another example of that is, um, the, the requests for information that the Department of Health and Human Services put out in November of last year. And what they did is basically asked religious entities and religiously affiliated hospitals for a roadmap. How do you want us to loosen, to loosen the nondiscrimination provisions? How can we make it easier for you to discriminate in the name of your religious beliefs? You know, and they, they got thousands of responses, including thousands and thousands of people saying, don't do this. You need to protect access to care. And yet, in late January they came out with this new proposed rule that, uh, emboldens basically anybody to refuse to provide health care.

Jennie: Wow. I think in the flurry of all of the other things going on, attacking reproductive health, I missed that November requests for more information.

Rachel: Yeah, it was sort of out of nowhere and they really did say, hey, we've heard from some of you organizations that we know want to discriminate, that we know don't want to provide the full range of care or even comply with the basic regulation saying you need to inform patients when you don't comply or, uh, you need to help those in federal detention. You know, you can't stop them from getting care in other places. They said, we know you don't like that, and we would like you to write us and tell us all the things you dislike, all of the different HHS program requirements you are opposed to. How do we make it easier for you? How do we build in more religious exemption laws basically?

Jennie: Wow. I just, that's crazy.

Rachel: Yeah. I mean, the good news is that, uh, overwhelmingly the responses said you all shouldn't do this.

Jennie: Well that's good. So you mentioned the new proposed rule that, uh, was announced in January. Can you tell us a little bit about this new rule?

Rachel: Yes. So this is a sweeping rule, really just trying to expand the reach of existing religious exemption laws beyond recognition. Uh, it's really trying to say that anyone involved in the provision of health care can refuse to provide any health care service to which they might personally object. Um, you know, this could have implications obviously for access to abortion, birth control, other reproductive health care, fertility treatments as well as for folks seeking end of life care, vaccines. Um, really anything that you can imagine and anyone who has, who interacts with a patient might have the ability to refuse to provide that care.

Jennie: I noticed in this rule, and I guess I don't know that, that this is true in previous religious refusals that it's religious and moral, which seems to be the new tack that this administration is. They took it with the birth control benefit and I see it again here. Is this a new expansion?

Rachel: Yeah, exactly. So they, they achieve this horrible result in a lot of really sneaky ways. Uh, first they take existing religious exemption laws, they take them out of context. So one of them says, you can refuse to do these things when you're engaging in biomedical research, and it tries to just drop the biomedical research piece and just say, you can refuse to do these things anytime, anywhere. Uh, and then the other thing that it does is it takes words that, uh, we all understand what they mean, and tries to give them new definitions, such as a religious exemption laws that say you can refuse to provide a referral. Now, under this new rule, referral suddenly means information or includes information. So that means that a health care provider could refuse to give you any information about what the proper treatment is in this situation, what's even going on with your condition. Uh, anything like that. They could literally send you home and you have no idea that at a different hospital you would be getting miscarriage management, or at a different hospital, they would go ahead and give you emergency contraception as part of treatment following a sexual assault.

Jennie: I particularly find the not giving of information the most egregious, I mean all of it's bad and terrible, but just not even telling people their options just seems so horrible to me.

Rachel: Right. It's, it's truly horrible. I mean, informed consent is one of the foundations of our medical system because your doctor has all of this knowledge and all of this power and you as a patient have so little. So you have to depend on the idea that they're telling you everything so you can make a real decision about what health care is right for you. It's, it's part of how you control your body and your dignity when you seek medical care, when you don't have information, that whole thing falls apart.

Jennie: And I think one thing also worth pointing out is that, you know, we talking, we're talking about all of this in a domestic context, but this HHS rule applies to all HHS funding. And HHS also gives money internationally. So it can have, it will have impacts on, um, international health funding that goes through HHS. So it could apply to multilateral things like the World Health Organization or the Global Fund. And there was no idea of how it could be interpreted and be used with those by those organizations.

Rachel: Right, exactly. And I think this is one of the examples where the rule is gonna particularly impact those communities that are least able to overcome the hurdles, right? These are, oh, there's a lot of critical HHS funding for providing HIV care and you know, it's communities where folks may not have the means to seek health care elsewhere. So the international piece is really scary. You know, I think one other piece about the rule that, that it's worth talking about is that they also redefine what it means to assist in the performance of a health care service. Now what it means to assist in the performance of the health of a healthcare service is anything you can explain is connected to that health care. So, uh, that could mean that you are a volunteer at a hospital and um, you're supposed to deliver meals to all of the patients and one of the patients is recovering from, you know, transition related medical care. You object to that. And so you refuse to even deliver that person's meal because you think that that assists in the performance of that health care. You know, it could also mean that you're the hospital's schedule there and you say, nope, I'm not going to book the OR for that patient because that's helpful. So it's just all of these additional hurdles that a patient may not even know are the reason why they're not able to get the care they need.

Jennie: I also just find it fascinating the number of people who don't know about, uh, all the people it can apply to. I don't want to call anybody in particular out, but I, I know somebody who's very involved as the president of a local hospital and I was talking to her about, about, uh, this expansion, like all the people that would be impacted, and she was so caught off guard and so shocked. Um, she didn't know these things. And you know, you would hope that it was being communicated to people in positions like that.

Rachel: Right. Absolutely. And one of the things that this rule does, is it really broadens the number of entities or individuals who are, you know, sort of high up at a hospital or in a different company that are unable to make their employees do their jobs right? She's at a hospital, she wants patients at that hospital to get comprehensive health care, but this rule means that she may not be able to force many of her employees to actually do their job. You know, you could spin this out to sort of all, all sorts of like far reaching places. You could work at a research and development laboratory, uh, as you know, a researcher, scientist and not ends up getting sort of the, the different samples and tissue that you need because someone at the front desk of your R and D lab refused to sign for the package because they have a problem with, uh, you know, the, the tissue because it's stem cells or something like that that's being delivered. And you wouldn't know that that's why you didn't get the materials you needed to actually do this research that maybe could lead to lifesaving drugs or treatment.

Jennie: I feel like I also saw some information with like family planning clinics having to hire people who maybe aren't willing to provide the full range of services.

Rachel: Yeah, absolutely. One of the things, um, that this rule doesn't do is it doesn't clarify how it interacts with, um, employment discrimination laws. And right now it's really clear under federal law that someone like a family planning clinic is not required to hire someone who won't actually do something that's called like an essential job function basically. Which in that case at a family planning clinic means advising folks about all of their options or about the full range of birth control. It's clear under federal law they can refuse to hire that person. It's not so clear from this rule that that's still the case. So at best, this creates a lot of chaos and confusion and especially for family planning clinics that receive critical federal funding, that chaos and confusion can mean they're able to open their door or continue to keep their doors open or not.

Jennie: You know, again, it's affecting the most vulnerable communities and you know, it's women trying to access services that are basic health care, and they're getting these pathways blocked in ways they might not know about because they're not being counseled on that they may need an abortion or they may want to use a more effective type of birth control or knowing that there are a full range of options available if they aren't being counseled on it.

Rachel: Yeah, that's absolutely right. You just may have no idea that you are hitting these hurdles, that you should be providing this care or that this care even exists because you go to the family planning clinic and now maybe you don't get that information and you go to the hospital and now you don't get that information. So we are seeing this in more and more places saying religious or moral beliefs, which really means that you can just deny care for whatever reason. You know, and I think one of the things that's really scary and kind of sneaky about a, what they did with this rule is they didn't write new laws. They said, we're just interpreting the laws that are already on the books. But the way we're going to do that it was, we're gonna redefine the words in those laws. So they say, okay, all of a sudden, uh, the law says you don't have to provide referrals. Well now we're going to define referral for the first time. And referral now means any information. So really emboldening those refusals to even say, here's the standard of care you should be receiving in this situation. Now you just have, have no idea they're refusing to provide it. And another example of that is that they redefined what it means to assist in the performance of a health care service that you personally object to. So now assists in the pro in the performance means, can you in any way articulate how what you're doing connects to the ultimate health care service the receives.

Jennie: Basically anybody for anything related to your service. Cause I mean now since the referral is anything and people associated is anybody, there's just this huge swath of people who can refuse your service.

Rachel: Yeah. And that's certainly what they're trying to do. The preamble to the rule was really scary. They pointed to all sorts of laws that, that we think of as really important to keep patients safe and said, you know, we think this is a problem. Everything from uh, you know, the California law saying that fake health clinics have to say they don't provide health services to laws requiring care in emergency situations.

Jennie: I know a lot of organizations, including hospitals and stuff, have non discrimination policies. How are these going to interact with religious refusals?

Rachel: Yeah. So if a hospital itself still has a nondiscrimination policy that can remain in place. But you know, if an individual provider really wants to provide the care, they believe that the hippocratic oath, demands that they provide this care. If the hospital says, well, we don't agree with your personal nondiscrimination policy, they can lose their job over that as a result of this rule.

Jennie: So we talked a little bit about how it's different from previous versions. Um, one other thing that's different is they set up a whole new division in HHS to deal with this, the Conscience and Religious Freedom Division. Can you tell us a little bit about that?

Rachel: Yes. So they actually announced this the day before they announced the new rule. And what this does is it is a division that's solely focused on protecting health care providers that want to discriminate and want to use personal beliefs to deny patient care. So they, in creating this new office, they're taking yet another step to prioritize religious beliefs over patient care. For one thing, this division is completely unnecessary. In 2011, the Obama Administration made clear that the current Office for Civil Rights has the authority to hear and inform and resolve complaints regarding the existing religious exemption laws. Uh, but more over, they've signaled ways that they're going to have the Office for Civil Rights focus only on emboldening religious refusals rather than doing the things that it should be doing, uh, enforcing the important nondiscrimination laws it should be protecting. So in, um, the, the Trump presidential budget that he issued a few months ago this year, he wanted to cut OCRs funding overall as well as as slash the members of the Office of Civil Rights staff. But at the same time, we know that they are hiring for this new division, which means it's really a huge swing in prioritize priorities and resources for OCR to allowing religious refusals.

Jennie: Yeah, it seems a big from focusing on patients' rights, which seemed to be what a lot of what OCR was doing to focusing on the right to deny service.

Rachel: Yes, absolutely. That's absolutely right. And we know that the Office for Civil Rights, it's very mission is to protect patient access to health care. One of the very first projects that OCR his predecessor took on was actually desegregating hospitals around the country and it was hugely successful. We saw all sorts of gains in health for communities that had previously been in segregated hospitals. Things of that nature. And you know, now OCR or before this rule, OCR was really supposed to be focused on enforcing things like the Health Care Civil Rights Law, which is a part of the Affordable Care Act, which for the first time broadly prohibits sex based discrimination in health care. And that includes discrimination because you've had an abortion discrimination because you're LGBTQ and instead of enforcing that really important law, they're now going to be focusing on allowing, allowing doctors and hospitals to refuse to provide care to folks.

Jennie: Yeah, it seems like it's going to put groups that were already marginalized and that, um, the Office of Civil Rights was working on making sure they had access to service. So particularly trans people, but, um, all LGBTQ people are now more at risk. Right?

Rachel: That's absolutely right. We know that it's folks that already face barriers to health care that are the most impacted by refusals. So we know that a, in a recent survey, 8% of LGBTQ patients and 29% of transgender patients reported that a doctor or health care provider refuse to see them because of their sexual orientation or gender identity in just the previous year. We also know that folks that need abortion or birth control navigate a complex web of restrictions in order to get the care that they need. And we also know that it is those who have multiple and intersecting identities that are most likely to face barriers to care, as well as the most likely to encounter refusals. So black women are actually far more likely than white women give birth in a Catholic hospital, which means they're more likely to be in a situation where they're refused miscarriage management or other care that they need. So we know that this rule, the impact is going to fall hardest on those who are already overcoming so many hurdles to get comprehensive health care.

Jennie: So right now the rule is currently a proposed rule and the comment period just ended. What's next?

Rachel: Well on this rule. The next step is that by law, the Trump administration is required to read and consider all of the comments submitted. And we know that, uh, the public alone submitted more than 200,000 comments opposed to what this rule would do. So that's going to take them some time to go through those. In fact, they haven't even posted them all yet. So they have to go through those, read them, consider and respond before they can finalize this and really make it go into effect. So that's step one. Uh, but you know, we've seen them cutting corners with some of this stuff before, so we have to remain vigilant. It should take them months to do that. But we will keep watching. We see that they're going to be adding in religious exemption or we expect they're going to be adding religious exemption laws to all sorts of other laws that we care about. So that includes Health Care Civil Rights Law in the Affordable Care Act that I discussed earlier, which prohibits discrimination in health care. It's the first time that that discrimination on the basis of sex in health care has been broadly prohibited. That means you can't be discriminated against because of an abortion because of your gender identity, because of your sexual orientation. Uh, we know that religious groups have hated this thing from the beginning or some religious groups have hated this thing from the beginning. I want to be clear, there are a lot of folks whose religious beliefs dictate that they do provide comprehensive patient care.

Jennie: Yeah. And even some from the same religions that are opposing it.

Rachel: Right. Exactly. Exactly. So some religious groups have hated this from the beginning. In fact, have, uh, challenged this in federal court and since the Trump administration took over they've signaled that they're open to those arguments and opens and saying, if you're a religious group, yeah. You are once again, allowed to discriminate against people because of their sex, gender, gender identity.

Jennie: So I'm assuming this isn't the end, that there are probably other things that are popping up. Um, not just federally, but also in the states.

Rachel: Yeah, absolutely. We, we know on the federal level that Congress continues to be interested in adding more religious exemptions to things. There was a big fight about potentially adding one, you know, just last month and they're not going to let that go. And we also see that this is a big issue that's bubbling up in the states, both states that want to do really good things and protect patient access to health care and states that want to make it easier for healthcare providers to discriminate. So I would say to keep on top of all of that stuff, make sure that you follow us on Facebook and Twitter, this, you know, we'll be watching, we'll that you know, when it's time to, uh, vocally resist. Uh, and then in the meantime, you know, let your members of Congress, know, let state legislators know that you oppose this sort of thing and that you think that they need laws that put patient health first.

Jennie: Thanks Rachel. Thank you for being here. I it was really fun talking to you.

Rachel: Yeah, thanks so much.

Jennie: For more information, including show notes from this episode and previous episodes, please visit our website reprosfightback.com. You can also find us on Facebook and Twitter at rePROs Fight Back. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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