Religious freedom should not eclipse other fundamental rights

Religious freedom should not eclipse other fundamental rights
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On the eve of the second Women’s March and in the midst of the #MeToo movement, the Trump administration introduced a new initiative that threatens to undermine access to constitutionally-protected health care for women and LGBTQ persons: the creation of a new Division of the U.S. Department of Health and Human Services (HHS) that will defend health-care providers who refuse to provide certain health care to patients based on their religious or moral beliefs.

The announcement was coupled with a notice of proposed rule-making, through which HHS intends to expand its enforcement power for these types of claims. Together, the new division and proposed rule encourage discrimination under the guise of religious freedom, and the initiative should be opposed.

Presently, federal law allows health-care workers to abstain from providing health care that they find morally or religiously objectionable, particularly abortion and sterilization. Similarly, many states have their own moral objection laws, which provide similar protections.


The Trump administration seeks to broaden the implementation of these federal laws, thereby protecting religious objectors over individuals seeking health care. HHS made this intention plain, stating that the purpose for its new Division is to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom[.]”

Moreover, while HHS was already empowered to adjudicate complaints brought by medical workers, the proposed rule creates additional enforcement and investigative power for the new Division, such as conducting affirmative investigations, imposing notice requirements on recipients of federal funds, requiring written assurances and certifications from “certain recipients,” and terminating funding for non-compliance.

There is little doubt that protecting the free exercise of religion is an admirable goal. Certainly, all people should be allowed to practice their religion without governmental interference.

But religious freedom cannot be permitted to eclipse other fundamental rights, and HHS’s proposed rule does precisely that. Specifically, the rule omits any mention of the right to privacy or the accompanying right to access reproductive health care.

Forty-five years ago, the Supreme Court made clear in Eisenstadt v. Baird that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Yet, HHS’s rule reads as encouraging medical professionals to engage in this kind of interference with private decisions about reproductive health care.

The proposed rule also subverts constitutional principles of equality and non-discrimination, since women and LGBTQ persons will be disproportionately impacted when medical workers abstain from delivering health care.

The types of health care most commonly regarded as morally or religiously objectionable are abortion, sterilization, and contraception, as well as care associated with gender identity. Invoking religious liberty as the grounds for withholding these types of health care is little more than an act of discrimination against the person who wishes to receive the health care.

The Trump administration’s intention to limit certain types of health care is clear. Tellingly, the announcement was set to coincide with the March for Life, the annual protest against Roe v. Wade, mounted each year since the first anniversary of the Supreme Court case that is now synonymous with a woman’s right to choose. This year, President TrumpDonald John TrumpFederal plan to contain Washington protests employs 7,600 personnel: report GOP Rep calls on primary opponent to condemn campaign surrogate's racist video Tennessee court rules all registered voters can obtain mail-in ballots due to COVID-19 MORE was the first sitting president to address the group.

Nor can HHS’s actions be considered alone; they are the latest steps in a movement intended to transform religious liberty from a shield against government intrusion into a sword for discrimination against women and others seeking health care. For instance, in May 2017, President Trump signed the Executive Order entitled “Promoting Free Speech and Religious Liberty,” which also seeks to enforce religious liberty to the exclusion of other fundamental rights.

More recently, in October 2017, the Department of Justice released a Memorandum on Federal Law Protections for Religious Liberty, in which Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsMcCabe, Rosenstein spar over Russia probe Rosenstein takes fire from Republicans in heated testimony Rosenstein defends Mueller appointment, role on surveillance warrants MORE interpreted religious liberty protection as allowing for discrimination in the workplace and in health care.

Ultimately, the HHS initiative, like the executive order and DOJ Memorandum, ignores that free exercise of religion must be considered in tandem with other fundamental rights and liberties. Both religious liberty and the right to privacy ensure that Americans can engage in an unencumbered pursuit of life, liberty, and happiness.

When the government promotes an interpretation of the law that mischaracterizes one fundamental right as subordinate to the other, it acts to thus undermine both. Accordingly, HHS’s initiative should not only be widely opposed, but outright rejected.

Mirah Curzer and Melissa Lee are Co-Chairs of the New York City Bar Association’s Sex & Law Committee