By DAVID INTROCASO PhD
In late January the Trump administration proposed a Department of Health and Human Services’ (DHHS) regulation that would legally protect any health care worker who refuses to provide care directly or indirectly to any individual by claiming a religious, moral or conscientious objection. While the federal government has for decades protected freedoms of conscience and religious exercise, the proposed would vastly expand these protections. No longer would these protections be applied to a very limited number of medical procedures. Think: abortion. Now, for example, a pediatrician could to provide care for a lesbian couple’s newborn or an emergency room nurse could refuse to provide a terminally ill patient palliative sedation.
Criticism of the proposed rule was immediate. Opponents contend if finalized the proposed would allow providers to ignore a patient’s medical needs including emergency needs that in some instances cause the patient further harm. It would undermine a healthcare entity’s effectiveness and patient safety responsibilities and would legally allow a provider to violate both their professional code of ethics and the patient’s civil and human rights. Critics argue the rule constitutes, in sum, an insidious form of bigotry. It would weaponize discrimination particularly against LGBTQs. It would, for example, roll back the Obama administration’s interpretation of the Affordable Care Act’s (ACA) anti-sex discrimination provision that protected gender identity. These, not insubstantial, criticisms aside there appears to have been little discussion of the proposed’s underlying rationale. What is the Christian theological basis, if any, for legally protecting religious exercise in denying health care?
The Proposed Briefly Summarized
The proposed rule published January 26 and titled, “Protecting Statutory Conscience Rights in Health Care, Delegations of Authority,” notes the federal government has since the 1970s through various legislative amendments including Frank Church, Coats-Snowe, Weldon and others, allowed health care providers freedoms of conscience and religious exercise. Initially, these religious belief or moral conviction protections were related to performing or assisting in a certain, few medical procedures, moreover abortion and sterilization. Over the years, these protections have been somewhat expanded to include other medical or medically-related services. For example, the 2010 Affordable Car Act included a provision protecting clinicians with religious objection to participating in assisted suicide.
The current proposed rule would, again, substantially expand these protections. Who would be potentially protected and under what health program activity is defined at length in the proposed. The health care entity or provider is broadly defined to include all health care personnel including those in training, in a hospital, a laboratory, a health insurance plan, a plan sponsor, components of a state or local government and/or any other kind of health care organization. Anyone of these individuals or entities can object to, the proposed states, “any health-related services, health service programs and research activities, health-related insurance coverage, health studies, or any other service related to health or wellness whether directly, through payments, grants, contracts or other instruments, through insurance, or otherwise.” The proposed also protects health care personnel from providing a referral. This provision is as well broadly defined. A provider could decline to provide any referral information by any method and decline to provide any information about those who would in turn provide a referral.
Beyond redefining how these protections are applied the proposed makes clear the DHHS Secretary is delegating to the Department’s Office of Civil Rights (OCR) full enforcement authority such that objections based on conscience or religious objection are protected in the same way the OCR ensures compliance regarding civil rights requirements. The proposed would affect as many as 750,000 hospitals and physician offices.
What Does Christian Doctrine Say?
At the National Cathedral, the Cathedral of the Episcopal Church, resides the Missioner for Evangelism and Community Engagement for the Episcopal Diocese of Washington, D.C., the Reverend Patricia Lyons. As her title suggests Reverend Lyons’ primary responsibility is to articulate and apply Episcopal or Anglican faith in the public square or serve, as Episcopal faith dictates, the common good in partnering to advance social justice. During a somewhat lengthy conversation with her this past March 26th, we discussed at some length how the proposed rule constitutes a perverse interpretation of Christian theology.
The only aspect of the proposed consistent with Christian theology is that it recognizes an individual’s right to follow or obey their conscience or their religious or moral beliefs. Thousands of years of religious teaching supports this view. Each of us has an authentic, unique self. Absent that, who are we? As Hillel said, if I am not for myself, who will be for me. It’s considered, as Reverend Lyons said, one’s obligation, one’s sacred duty since through one’s conscience we hear the voice of God. That said, both withholding any health-related service based on one’s conscience or religious beliefs and having it legally protected is problematic for several theological reasons.
If following our conscience is our only obligation, if it is absolutized or turned into an idol as Reverend Lyons characterized, it would turn religious and moral life into an individual affair. We would as individuals be able to, as she observed, turn against the world. Such allowance would trump (no pun) our obligations to one another. Christian theology teaches that we are constituted as individuals precisely by our relationship with others. It is only because of our relationships with one another do we become fully human. I cannot be me without you. Since Christian theology is intrinsically communal we have reciprocal obligations to one another. This means all social goods be shared equally or communally. Christian theology teaches no one individual enjoys absolute exclusive rights and that God did not intend to distribute the necessities of life, least of which healthcare, unequally.
That the government would protect an individual’s right of conscience and religious objection, that the individual would suffer no legal consequence exercising such right, is also a perversion of Christian teaching. Christian theology, as enumerated for example in several Catholic encyclicals, teaches the principle of subsidiary. That is render unto Caesar what is Caesar’s. While again, Christian theologians would support an individuals conscience rights they do not believe exercising such should be without consequence. As Reverend Lyons recognized, the government’s purpose is largely to deliver justice. Since medical care, for example and again relieving the suffering of a newborn or the terminally ill, is not illegal, the government’s has a duty, an obligation, to deliver justice. For the government to ignore in turn its obligations obviously undercuts the rule of law. It is a crime itself. It leads, Reverend Lyons argued, to a radical re-conception of government and is only workable if we intend to move from democracy to theocracy. Do we want the state, she asked, to protect people from the consequence of the law? Do we want to move in the direction of effectively establishing one religion over another?
The proposed presents several other theological-based problems. Among others, that the OCR will legally protect health care workers exercising conscience or religious objection would mean their employer would have no recourse. That is a provider could violate their professional code of ethics. As Reverend Lyons explained the Episcopal Church teaches professional codes are based on the conception that professional accomplishment is ultimately God’s gift. God granted the health care provider certain intellectual capabilities and other gifts. Therefore, since the individual does not own their profession, all individuals within the profession are subject to a code of ethics. That would mean a health care provider is required to participate indiscriminately in the enabling the realization of what that profession offers others. As the American Academy of Family Physicians wrote in its March 20th letter in response to the proposed, “There is a distinct difference between declining to participate in a procedure versus denying access to care to an individual patient. The former is a protected right, the latter is an unacceptable shirking of our basic responsibility to care for our patients and contrary to the key underpinnings of the Code of Medical Ethics.”
As written the proposed would have to allow a person to exercise any religious belief Christian or otherwise and any exercise any conscience choice, say an atheist’s conscience choice. Would then an atheist provider be legally protected from treating a God-fearing patient? The proposed turns the long-established possessive individualism of the modern market economy criticism on its head. Instead of conscience and religious exercise moderating the excesses of capitalism, such exercise would reinforce the market definition of people as commodities. (Christian theology teaches the purpose of life is not to consume or accumulate but to do justice.) The proposed would also prove to further exacerbate already daunting health care disparities. For example, polling data shows transgender individuals already frequently have negative healthcare experiences, are denied care, or avoid seeking care for fear of being mistreated. The proposed in not good news for them.
If anything the proposed reminds us of how woefully short we fall in living up to Christian teaching. Social goods, particularly health care, are considered communal. In this sense theology and economy are correlative. To deny someone, anyone, the gift of healing is in a word unfaithful. It denies God’s interest that all of us can find an abundant life. It is also uncharitable. Faith without charity we know from St. Paul, is non-salvific. The proposed is not what Christian theology teaches. It, instead, eclipses these teachings.
David Introcaso is a healthcare research and policy consultant based in Washington, D.C.