The new Conscience and Religious Freedom Division created by President Trump relies on the protections of the First Amendment to the United States Constitution, along with the groundwork laid by the Religious Freedoms Act (1993), to protect the rights of healthcare workers. While religious groups are hailing Trump as a hero, others are concerned for the civil liberties of traditionally disenfranchised groups. Gay, lesbian, and trans groups, as well as women seeking an abortion, care after an abortion, or birth control may be affected by the creation of this new division.
Religious objections by healthcare workers now have backing
According to the HHS website, the new office “enforces federal laws that protect conscience and the free exercise of religion and prohibit coercion and discrimination in health and human services.” While broad, the limitations apply only to HHS funded programs or programs conducted by HHS. In City of Boerne v. Flores, the Supreme Court of the United States struck down the RFRA as applied to the states. Citing the 14th amendment and states' rights, the court surmised that the RFRA purported to create a change in constitutional protections.
“RFRA's most serious shortcoming, however, lies in the fact that it is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent unconstitutional behavior,” wrote Justice Kennedy in the six-to-three opinion.
In a statement regarding the new Conscience and Religious Freedom Division, OCR director Roger Severino said, “No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice.”
Presumably, Severino is talking about discrimination of religious persons who object to performing abortions, performing sex change services, treating a person who identifies as gay, lesbian, or trans, filling a birth control prescription, or performing fertility treatments for a gay or lesbian couple.
Complicating matters, both religion and sexual orientation are part of the traditional list of characteristics associated with discrimination. According to Findlaw.com, characteristics associated with discrimination include age, disability, ethnicity, gender, marital status, national origin, race, religion, and sexual orientation.
Religious freedoms do not account for the Hippocratic Oath
Additionally, according to Medicalnews.com, the traditional version of The Hippocratic Oath taken by doctors and nurses states, in part, that the healthcare worker will “apply dietetic measures for the benefit of the sick according to (his/her) ability and judgment" and he or she will "keep them from harm and injustice.” In the modern version, the oath states: “I will remember that I remain a member of society, with special obligations to all my fellow human beings.”
Taking to Twitter, the ACLU is already taking a stance against the new division. Voicing their objections, the ACLU took a stance on civil liberties. “Religious liberty doesn’t include a right to be exempt from laws protecting our health or barring discrimination,” wrote the ACLU on their Twitter account.
Further, the ACLU is already threatening court action in response to this new legislation: “Should the Trump administration choose to move forward with this discriminatory policy, we will see them in court,” wrote the ACLU on Twitter last week.
Still, the new division provides a link for complaints alleging religious discrimination of healthcare workers. Further, in a press release dating January 19, 2018 the Conscience and Religious Freedoms Division announced that it had rescinded the 2016 guidelines restricting states' abilities to take action against family planning providers.
