Donald Trump is someone who has repeatedly bragged about committing adultery, has been caught on tape talking about grabbing the genitals of non-consenting women, and reportedly paid off a porn actress so she wouldn't talk about having sex with him when his wife was pregnant. The religious right has eagerly supported Trump anyway, neatly proving that it was never sexual "morality" that motivated them, so much as opposition towards treating women and LGBT people as full human beings who deserve basic rights and respect.
That support is paying off, as Trump has been faithfully filling his administration with hardline sexists and homophobes eager to legalize discrimination. One such bigot, Roger Severino, has been putting his opposition to gay rights and comprehensive reproductive health care into action in his role as the head of the civil rights division at the Department of Health and Human Services. This week, Politico reported that the agency is considering regulations that would shield health care workers from professional consequences if they discriminate against patients for "religious" or "moral" reasons.
While advocates for this policy dress it up as protecting the religious freedom of health care workers, health care and legal experts that spoke to Salon said that most health care workers already have freedom of conscience.
“The existing standard under law already requires employers to accommodate people of faith unless it imposes an undue hardship," Louise Melling, director of the Center for Liberty at the ACLU, explained to Salon.
Melling said the ACLU has a lot of questions about any potential expansion of the already generous religious exemptions for health care providers: “Are the exemptions being granted even as to [dispensing] information? Are the exemptions being granted even in emergency contexts? Are the exemptions being granted without any provision or assurance that somebody else can provide the care?”
Right now, the proposal being considered remains unclear as to details. But as Melling pointed out, under Trump, HHS has already tried to change a rule mandating that health care plans cover contraception, in a way "that enabled virtually any company to simply deny a benefit guaranteed by the law," forcing the ACLU to sue. The fear with this proposed new policy is that it may result in a similar strategy to deny people all kinds of legal, ethical and necessary health care.
“We as medical providers have sworn an oath to serve the public, and we shouldn’t be able to pick and choose who’s going to get care or who we are going to serve based on religious beliefs," Dr. Jennifer Conti, a fellow for Physicians for Reproductive Health, told Salon. "Could you then refuse to help patients who have drug addictions or patients who are sex workers or patients who are transgender individuals?"
Dr. Lori Freedman, a sociologist who works with Advancing New Standards in Reproductive Health at the University of California, San Francisco, noted that it's "already hard enough for patients to navigate care without religious discrimination," because companies affiliated with the Catholic church keep buying up clinics and hospitals and forbidding doctors to offer abortion services, and sometimes medically necessary miscarriage management and contraception services.
"If you take it to the individual level, it seems like it could be very insecure and idiosyncratic," Freedman added.
As most, if not all, people who object to gender confirmation care or comprehensive reproductive care tend to opt out of taking jobs in those professions, the most likely effect of a "conscience clause" would not be on clinics that specialize in these services. Instead, it would come up in situations where people show up at hospitals or clinics seeking more basic forms of care and find themselves denied because a health care provider disapproves of their existence or their personal choices.
During the Bush administration and early years of the Obama administration, for instance, there was a surge of pharmacy refusals: Women who tried to fill birth control prescriptions were rejected by pharmacists who disapproved of the women's perceived sex lives (on little or no information). In many cases, these prescriptions were time-sensitive or the women lived in rural areas, meaning that the refusal of service put them in danger of unintended pregnancy as they scrambled to find help elsewhere.
Currently, the Transgender Law Center is litigating a case where a young trans man was allegedly given inadequate care at a hospital after he sought help for self-harm and suicidal ideation. The lawsuit alleges not only was the patient misgendered by health care providers, but was released too early, which may have played a role in his suicide five weeks later.
Research suggests, Freedman said, that most people expect health care providers to treat them professionally and not discriminate based on religion or other factors. She was an author on a recent paper published in the American Journal of Obstetrics and Gynecology that found that while only 35 percent of women ages 18 to 45 cared about a hospital's religious affiliation, 81 percent very much wanted to know if the hospital had restrictions on care based on religious objections. More than half believed that hospitals should not be allowed to restrict care based on faith at all.
That survey looked at hospital-level restrictions, which at least can be codified and made transparent, though they often aren't. But what the Trump administration is reportedly considering is even more obtuse from the patient side. You can't know until you show up at the hospital or clinic if a random doctor or nurse will refuse to serve you because they think Jesus disapproves of gay people, trans people or sexually active women. At that point, the refusal of care might not just be mortifying, but could threaten a patient's health, as refusals often delay the point when a patient receives necessary care.
Religious freedom is an important value, of course. That's why there are expansive rights for workers to practice their faith without fear of reprisal from their employers. But it should also be an important value for patients, who deserve a right to receive care even if their views on sexual or moral issues differ from those of providers who have a duty to serve the public.
“In our view, what religious liberty means is a right to your beliefs," Melling argued. "Religious liberty doesn’t give you a right to harm others.”
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