Freedom to Object or Freedom to Discriminate?

On January 18, 2018, the Trump administration announced a new division of the United States Department of Health and Human Services (HHS). The department of Conscience and Religious Freedom, empowers and supports health care professionals that wish to abstain from medical procedures that do not coincide with their religious beliefs. The Division’s website professes that it functions to, “revise regulations previously promulgated to ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate, in violation of such Federal laws". Along with the promise that the division will serve and review complaints of Professionals who do not wish to push their religious freedom aside in order to perform certain medical procedures that otherwise violate them, the division has proposed new regulations to ensure the protection of freedom of conscience and religion. These regulations provide the division with the power to single handily review and create precedent in consideration of such complaints. The proposed regulation claims, “In addition to conducting outreach and providing technical assistance, OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints”.

The Division comes as a win for many conservatives, Asma Uddin, founder of AltMuslimah.com, states, “It’s about implementing the religious liberties that are already there,” she said. “It’s significant in contrast to the years of litigations.” Particularly, the division will sanction many health care professionals currently fighting the issue of freedom of conscience and religion, including Sara Hellwege, a nurse-midwife who was denied a job at a health center as per her refusal to prescribe prescription contraception. Her denial was on basis that the practice operated along a state program that relied on prescription of contraceptive for family planning. Hellwege then sued, stating that her right to Freedom of exercise was violated, as she was discriminated against during the application process due to her beliefs. This case, alongside the new division of the HHS proposes the valid question of, how does the civil magistrate constitutionally draw the line between the obligation of a citizen’s morality and their secular obligations as a health care professional? More impeding, is it an infringement on freedom to exercise religion for a health care center to deny applicants based on their inability to preform medical procedures that aren’t consistent with their own religious beliefs?

I do believe that Hellweges application denial was unconstitutional. The Church Act of 1973 protects an individual’s freedom of Religion and Conscience, the act allows medical professionals to object a procedure on grounds that it violates their religious beliefs, “[entities can not] discriminate in the extension of staff or other privileges to any physician or other health care personnel,…because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance…would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.” Furthermore, this point is driven if you apply the infamous court decision of Roe V. Wade which states, “Neither physician, hospital, nor hospital personnel shall be required to perform any act

violative of personally-held moral principles,” in this case Sara Hellweges would need to invoke that right and therefore cannot be subject to discrimination based on it. More so than ever, through the Trump administration’s newly enacted department the on these previously existing liberties, citizens will have the option to exercise these liberties freely and without discrimination.
Although, to see the broader scope of the Trump Administration’s newest provision to the HHS, I think it is within basis to bring up what implications the department may now have on the decisions of Freedom of Religion and Conscience cases. The department could very well cause people to cite their right to not treat many patients, based on controversial issues other than actual medical procedures, possibly such as sexual orientation and gender, and the slippery slope argument is invoked. In addition, the department could very well allow people of the Country to constantly invoke their right to not offer their medical services to people who go against their religious beliefs. The Department of Freedom and Conscience provides justification for medical professionals to discriminate based on the argument of Freedom of Religion and Conscience. As said by Larry T. Decker, executive director of Secular Coalition, “This move by the Trump administration does not protect conscience but instead weaponizes it, turning religious belief into yet another barrier…The right to conscience does not include the right to impose your conscience on others”.