In 2014, a 27-year-old nurse-midwife named Sara Hellwege applied for a job at Tampa Family Health Centers, a federally qualified health center. She was a member of the American Association of Pro-Life Obstetricians and Gynecologists, a professional association that opposes abortion.
“Due to religious guidelines,” Hellwege wrote to the clinic’s HR director, Chad Lindsey, in an email, “I am able to counsel women regarding all forms of contraception, however, cannot Rx [prescribe] it unless pathology exists—however, have no issue with barrier methods and sterilization.”
In his response, Lindsey cited the health center’s participation in a government family-planning program, Title X, as grounds for rejecting her as an applicant. “Due to the fact we are a Title X organization and you are a member of AAPLOG, we would be unable to move forward in the interviewing process,” he wrote. The clinic did not, he added, have any positions available for practitioners who wouldn’t prescribe birth control.
Hellwege sued through the Alliance Defending Freedom, a Christian legal group, on the grounds that a federally funded clinic should not be able to disqualify applicants because they “object to providing abortifacient contraceptives.”
The case settled, and on Thursday, Hellwege reappeared on the national scene: She spoke at the national press conference announcing the creation of a Conscience and Religious Freedom Division at the Department of Health and Human Services. The new office was established to hear complaints from medical professionals like Hellwege, who feel they have been pressured into providing medical services that conflict with their religious beliefs. If the office finds there was a violation, they could issue a corrective action, such as making a hospital find someone like Hellwege a different position, according to Susan Berke Fogel with the National Health Law Program.
“I hope that everyone can agree that no doctor or nurse should be denied employment or fired on account of their faith,” Hellwege said at the press event.
Roger Severino, the head of civil-rights enforcement at HHS, also made remarks at the event, saying, “the state should not force people to go against their integrated view of humanity.” He added that though there had been just 10 complaints from health-care workers related to religious beliefs during the Obama administration, there have already been 34 in the first year of the Trump presidency.
On Friday, HHS followed up by issuing a proposed rule that would affect as many as 745,000 hospitals, doctors’ offices, and nonprofits. It would require them to post notices of protections against religious discrimination on their job applications and employee manuals, and it would allow HHS to enforce protections for religious medical providers. The new rule would cost about $312.3 million in the first year alone to implement.
The ADF, the group that brought Hellwege’s lawsuit, welcomed the new measure, saying it would help the federal government protect health-care workers from being coerced to do something that violates their conscience. Kevin Theriot, the ADF’s senior counsel, pointed to new reporting requirements for health-care entities to demonstrate that they haven’t forced anyone participate in abortion or sterilization.
But reproductive-rights advocates worry the new rule could go further than past medical religious-freedom regulations, allowing almost anyone who works in the health field to refuse to provide a wide array of services. Meanwhile, it doesn’t require the religiously objecting doctors to refer patients elsewhere.
Via email, Planned Parenthood Federation of America said the rule could mean that a pharmacist could refuse to fill a prescription for birth control, a transgender patient could be denied hormone therapy, or a pediatrician could refuse to treat the child of gay parents. “Under the new rule, you could have translators who refuse to translate for a woman undergoing tubal ligation,” says Elizabeth Sepper, a law professor at Washington University in St. Louis.
Sepper says the rule could also mean that states that cover abortion in their health-care plans, such as California, or that require faith-based Crisis Pregnancy Centers to disclose that they don’t provide medical care, could be stripped of federal health-care dollars.
Theroit, from ADF, dismissed concerns like these, saying, “I’m not aware of any situation where any civil rights law would be expanded to that depth. That’s a parade of horribles that has never paraded.” In an emailed statement, Severino said that “the proposed rule does not create any new protections in law that do not already exist, but faithfully enforces what Congress began requiring decades ago,” when it comes to procedures like, “abortions, sterilizations, and assisted suicide.”
The rule is not final yet, but Sepper says it is “highly likely to become final in more or less this form.”
There are already federal laws that protect medical personnel from being required to provide abortions. In addition, nearly every state also allows health-care providers to refuse to perform abortions, and 12 states allow them to refuse to provide contraceptives. In six states, even pharmacists are allowed to refuse to fill birth-control prescriptions.
According to reproductive-rights groups, the problem is these laws often mean patients who are denied services aren’t then referred to a doctor who will provide the care. According to one poll, only 57 percent of doctors nationally believe objecting physicians must refer patients to an accommodating provider. “Only in a couple of states are patients given information and referrals,” says Elizabeth Nash of the pro-choice Guttmacher Institute.
This HHS rule doubles down on the idea that conscientiously objecting physicians shouldn’t be required to refer patients to willing providers, according to Martha Swartz, an attorney who has studied conscience clauses. The proposed rule defines “referral” as providing “any information,” including a phone number or website on a pamphlet, about a health service that the provider disagrees with.
While groups like the ADF and the Trump administration seem more focused on protecting the rights of religious health-care workers, the rule’s critics say they’re focused on the patients. The proposed rule “totally doesn’t recognize professionals’ obligations to put their patients’ medical interests before their personal interests,” says Swartz.
Louise Melling, a deputy legal director at the American Civil Liberties Union, sent me a few examples demonstrating the flip side of Hellwege’s case, in which patients were denied care on religious grounds.
One 2000 case involved a New Jersey labor-and-delivery nurse named Yvonne Shelton, whose Pentecostal faith meant, to her, that she could not participate “directly or indirectly in ending a life․” In 1995, Shelton’s hospital admitted a patient who was “standing in a pool of blood” and diagnosed with placenta previa. The doctor ordered an emergency C-section, and Shelton was told to scrub in to assist. But when she learned the procedure would terminate the pregnancy, Shelton refused to participate, delaying the procedure by 30 minutes, the hospital claimed. Shelton was fired after refusing another job within the same hospital.
In 2015, a lesbian couple in Michigan had a pediatrician decline to care for their six-day-old infant, Bay, because, as the doctor later explained to the couple, “after much prayer following your prenatal, I felt that I would not be able to develop the personal patient-doctor relationships that I normally do with my patients.”
According to The Washington Post, Severino “did not rule out” that the proposed rule could apply to LGBT-related cases. To The Atlantic, he said OCR “will apply the law to the facts of each particular case and it would not be appropriate to prejudge hypothetical scenarios. To the best of our knowledge, in the 45 years since the Church Amendments were passed ... not a single case has arisen where the laws have been used for objections based on a patient’s identity.”
Another case, also in Michigan, involved Tamesha Means, a woman who was rushed to her county’s Catholic hospital when her water broke at 18 weeks into her pregnancy. “Based on the bishops’ religious directives, the hospital sent her home twice even though Tamesha was in excruciating pain,” as the ACLU put it. The hospital staff did not tell her that she could, and probably should, end the pregnancy, according to the ACLU’s summary. Ultimately, Means returned to the hospital a third time, this time with an infection, and miscarried.
Melling pointed out the the ACLU is not opposed to religious liberties, and has even filed cases advocating for religious freedoms. “But religious liberties doesn’t give you the right to harm other people,” she said.
There isn’t a good count of either how many doctors harbor religious objections they’re not able to act on, or of how many patients get denied services by religiously objecting doctors. The most typical way medicine and religion tend to collide, these experts say, was for the sixth of all U.S. patients who are treated by Catholic health systems. Some of these hospitals don’t provide certain types of contraception, abortion, or assisted suicide. But those are hospitals, not the individual doctors and nurses who appear to be the main beneficiaries of the new HHS proposed rule.
“They’re setting up this office and using a lot of taxpayer dollars to solve a problem that doesn’t really exist,” Fogel says. “Health systems are already pretty good at accommodating people who have a genuine objection to participating in a service.”
Swartz agrees, saying the problem of conscientiously objecting physicians “is like voter fraud. Those instances are one in a million.”
Rare though they might be, these cases will now merit special attention by the U.S. government.