Religious Freedom in Healthcare: Navigating the New Era
by Jonathan Imbody
Today's Christian Doctor - Winter 2015
The U.S. Supreme Court’s decision to negate the votes of millions of citizens and unilaterally mandate same-sex marriage nationwide threatens to undermine centuries of First Amendment protections, including conscience freedoms for faith-based healthcare professionals.
The basis for the 5-4 ruling in Obergefell v. Hodges on June 26, 2015 erodes the nation’s democratic, moral and legal foundations in ways that make every citizen vulnerable to ideological coercion and governmental suppression. Notwithstanding a few tepid assurances in the majority opinion regarding minimal accommodations for mere religious speech (not religious exercise), dissenting justices and religious freedom experts also agree that the ruling foreshadows a new era of hostility in law and society toward man-woman marriage believers.
The decision portends grave legal, professional and personal dangers for individuals who hold to the marriage truth taught in the Scriptures from Genesis to Jesus; namely, that “from the beginning of creation, God made them male and female. For this reason a man shall leave his father and mother, and the two shall become one flesh; so they are no longer two, but one flesh” (Mark 10:6-8, NASB).
How the ruling impacts healthcare professionals
I asked several religious freedom attorneys with whom I work to outline some of the potential conflicts that healthcare professionals who hold to biblical marriage face as a result of the ruling. The response was:
- “Fertility specialists will be subject to lawsuits or nondiscrimination enforcement actions if they do not assist lesbian couples to conceive.”
- “OB/Gyns will be subject to lawsuits/nondiscrimination enforcement if they do not provide services to same-sex couples.”
- “Medical professionals will be subject to nondiscrimination laws if they persist in referring to patients by—and perhaps even treating patients—according to their true gender instead of their self-identification. This could include OB/Gyns who decline a transgender or transitioning patient.”
- “Faith-based hospitals and medical professionals will be required to accept same-sex marriages as valid for purposes of visitation, next-of-kin, etc.”
- “In any of these situations, medical professionals may also be subject to loss of licensure or ethics complaints. Doctors should be on the watch for revisions to accreditation, licensing, ethics codes and [similar qualifications] that would stifle their ability to live according to their beliefs about marriage and human sexuality.”
Limiting conscience freedoms: Same song, second verse
Pressuring healthcare professionals to compromise their convictions about marriage would parallel abortion-related assaults on healthcare conscience freedoms.
In 2007, for example, the Ethics Committee of the radically pro-abortion American College of Obstetricians and Gynecologists (ACOG) issued an aggressive new policy statement, “The Limits of Conscience Refusal in Reproductive Medicine.”1 Regarding abortion, ACOG declared, “Physicians and other health care professionals have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive service that patients request.”
The American Board of Obstetrics and Gynecology2 followed up by referencing in its official Bulletin ACOG’s conscience-limiting policy. The reference by implication threatened the ABOG certification and careers of many pro-life OB/Gyns.
As U.S. Department of Health and Human Services (HHS) Secretary Michael Leavitt noted in a March 14, 2008 letter to ACOG, “It appears that the interaction of the ABOG Bulletin with the ACOG ethics report would force physicians to violate their conscience by referring patients for abortions or taking other objectionable actions, or risk losing their board certification.”
In response to this threat to CMDA members and to medical professionalism, CMDA worked with top HHS officials and others to uphold, clarify and illustrate the importance of existing federal laws protecting healthcare professionals’ conscience freedoms. President George W. Bush’s administration in 2008 promulgated a strong regulation clarifying and enforcing three longstanding federal conscience-protecting laws. In 2011, President Barack Obama’s administration gutted the regulation.3
Ruling will be “used to vilify”
The Supreme Court’s opinion in Obergefell, written by Justice Anthony Kennedy, offered weak reassurance to the obviously endangered faith community: “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths…[emphasis added].”
The First Amendment does not merely protect the narrow realm of religious teaching, but the grandly more expansive “free exercise” of religion—a concept that encompasses daily living out the convictions of one’s faith and conscience. People of faith express their convictions not merely in teaching but also in moral actions in the workplace, schools and the public square.
Kennedy’s expression of the First Amendment’s free exercise clause as a mere right to believe or teach reinforces the Obama administration’s governmentwide diminishing of the free exercise of religion.
- The Affordable Care Act’s HHS contraceptives and sterilization coverage mandate, contested in the Hobby Lobby Supreme Court case and others, requires employers to provide even potential abortifacients in health insurance plans.
- The administration has been systematically injecting requirements regarding same-sex marriage into federal grants programs,4 threatening to marginalize faith-based healthcare and social services providers.
- The administration attempted to limit religious hiring rights in a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The administration’s position proved so radical and offensive to First Amendment principles that it lost the case by a 9-0 margin.
Dissenting Justice Samuel Alito highlighted the personal impact of the Court’s ruling, warning that it “will be used to vilify Americans who are unwilling to assent to the new orthodoxy. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Marginalizing the faith community
In an excoriating dissent, Chief Justice John Roberts warned of serious harms to faith-based institutions: “Today’s decision…creates serious questions about religious liberty. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.
“Indeed, the Solicitor General [the Obama administration’s attorney who argued the case] candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
The ink of the Court’s decision had barely dried when new attacks on faith-based institutions erupted. A TIME magazine commentary by New York Times columnist Mark Oppenheimer asserted that “the logic of gay-marriage rights could lead to a reexamination of conservative churches’ tax exemptions.” Oppenheimer urged that now “we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses.”5
Threatening physicians and students
Threats specific to healthcare professionals, meanwhile, are not merely existential; pressure to conform to the new marriage ideology is already eroding First Amendment freedoms of faith and speech. Besides the threats outlined above by religious freedom attorneys, the following examples illustrate the potential for widening discrimination against faith-based healthcare professionals and students:
- The California Supreme Court denied religious exemptions in a 2008 case (Benitez v. North Coast Women’s Care Medical Group) against two Christian physicians who had declined to artificially inseminate a lesbian couple.
- Oregon, California, New Jersey and Washington, D.C have outlawed so-called “gay conversion therapy,” effectively barring free speech and professional discretion.6
- Some medical school admissions committees already reportedly routinely weed out students who oppose abortion; the Obergefell ruling will embolden committees to add same-sex marriage to ideological litmus tests.
- CMDA campus ministries recently have been targeted by university officials for requiring leaders to believe in God or hold to biblical sexual standards; the marriage ruling adds another arrow to the quivers of faith-hostile administrators.
Where do we go from here?
Legislation: To legislatively address new threats, CMDA meets regularly with members of Congress and supports passage of the First Amendment Defense Act.7 The bill (H.R. 2802, S. 1598) provides that “the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
Advocacy: The Obama administration’s 2009 threat to conscience freedoms related to abortion triggered the launching of Freedom2Care (www.Freedom2Care.org), organized and led by CMDA’s Washington Office. Today, Freedom2Care and its 30,000 followers continue the fight to protect First Amendment freedoms of faith, conscience and speech. Already this year, Freedom2Care supporters have generated more than 5,000 advocacy messages to legislators.
Litigation: CMDA continues to work with legal organizations including the Christian Legal Society, Alliance Defending Freedom, the Becket Fund for Religious Liberty and others that specialize in religious freedom and provide pro-bono legal services to individuals in legal disputes. Members contemplating legal action should contact the Washington office at email@example.com.
Advocating as ambassadors
American followers of Christ do well to remember the “great cloud of witnesses” (Hebrews 12) of counter-culture Christians who lived out their faith courageously and gloriously in the midst of intense persecution. We must continue to lovingly live out and winsomely speak out about the truth about marriage, and we must also advocate for public policies to regain and retain the religious freedoms on which our nation was founded.
We can, as I conclude in my book Faith Steps, “adopt a biblical worldview that encompasses public policy and determine to courageously encounter our culture with kingdom principles. We seek to serve as ambassadors of Jesus Christ in love, winsomely and encouragingly engaging our friends and neighbors.
“Recognizing that we must portray the character of Christ while advancing godly values, we lead with good deeds, which helps others accept our words. We realize that in taking on this ministry as Christ did, we have no guarantee of earthly success, only of persecution and challenges that test our faith and our will to persevere.”
1 “The Limits of Conscience Refusal in Reproductive Medicine,” American College of Obstetricians and Gynecologists (ACOG) Ethics Committee Opinion Number 385, November 7, 2007.
2 American Board of Obstetrics and Gynecology’s (ABOG) Bulletin for 2008 Maintenance of Certification (Bulletin).
3 For details and analysis, see http://www.freedom2care.org/docLib/20110222_NotesonObamaconscienceregulation.pdf.
5 Oppenheimer, Mark, “Now’s the Time To End Tax Exemptions for Religious Institutions,” TIME, June 28, 2015.
6 See “Oregon outlaws gay conversion therapy, joining two other states,” CNN, May 20, 2015.
7 Visit our Freedom2Care legislative action website at http://cqrcengage.com/f2c/.