The Department of Health and Human Services announced a new office dedicated to investigating conscience objections and religious-freedom concerns in health care on Thursday. The initiative doesn’t change the law. Rather, it strongly signals the focus of the department’s Office of Civil Rights, which is responsible for investigating civil-rights violations in health-care contexts. Roger Severino, the head of OCR, told me last summer that he hoped to increase enforcement of laws that protect workers from being forced to violate their consciences. This move makes good on that promise. It also answers long-standing objections from conservatives, who largely saw the Obama administration as trampling on religious freedom, especially in the arena of health care.
While the language of the announcement is broad, promising to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom,” it seems to be targeted at a particular set of issues: those that deal with the beginning and end of life. The press release specifically mentions the Church, Coats-Snowe, and Weldon amendments, which all protect health-care employees and providers that refuse to perform, pay for, or train doctors on abortion and sterilization. It also mentions Section 1553 of the Affordable Care Act, which protects those who object to medically assisted suicide.
All of these laws are already on the books. But now, HHS is promising to enforce these statutes more aggressively. “For too long, governments big and small have treated conscience claims with hostility instead of protection,” said Severino in the press release. “But change is coming and it begins here and now.”
This is a direct shot at the Obama administration, which many religious conservatives—including Severino—saw as aggressively hostile toward religious-freedom rights. Organizations including the Becket Fund for Religious Liberty, where Severino formerly worked, waged war on a number of provisions in the Affordable Care Act that specifically had to do with abortion and contraception, leading to protracted court cases. Everett Piper, the president of Oklahoma Wesleyan University, one of the institutions that sued HHS, explicitly rebuffed the previous administration in the press conference on Thursday. “I just want to say how good it is to be here thanking Health and Human Services and the Office of Civil Rights, rather than suing them,” he said, to laughs from the audience.
Over the past year, the Trump administration has taken steps to resolve the health-care-related religious-freedom conflicts that emerged under Obama. But Thursday’s announcement was its first move to take the offensive. Not only will those who object to abortion, contraception, and other controversial issues be free of government persecution, it seemed to suggest, they will actively be protected by the government.
HHS took steps to make sure the press conference included a range of voices—not just those of conservative Christians. Asma Uddin, the founder and editor in chief of Altmuslimah, a blog about gender in Islam, praised the new office, noting that “many Muslims, many members of my own community, need respect for modesty, particularly as patients.” Mitchell Rocklin, an Orthodox rabbi on the executive committee of the Rabbinical Council of America, argued that American Jews should be supportive of this initiative. “I think it’s unfortunate that, too often, the issue of religion has become seen as a partisan issue,” he said. “And I hope, and I pray, that the establishment of this new division within HHS will help bring the debate back where it belongs: to one of consensus.”
But most of the speakers leaned into the political moment. House Majority Leader Kevin McCarthy, the Republican congressman from California, criticized the Obama administration’s implicit demand that religious people conform to secular norms. “What a difference one year makes,” he said. “If we don’t preserve the freedom of all people to live in accordance with their faith, our unity is lost.” And Senator James Lankford, the Republican from Oklahoma, argued that “there’s not a flood of new cases of religious intolerance. I think this is an opportunity for people to be able to say, ‘This has existed for a while, and I felt no one was listening.’ Now someone is listening.”
Already, conservative and liberal groups have released dueling press releases, with the Susan B. Anthony List, a pro-life group, hailing this as “a welcome change from the Obama administration’s stubborn refusal to enforce federal laws that prohibit discrimination against health-care entities,” while Americans United for the Separation of Church and State charged that “the Trump administration wants to sanction the use of religion to discriminate and deny patients access to health care.” On Wednesday, as rumors circulated that something along these lines was coming, LGBT-advocacy groups sent around statements expressing fear that gay, lesbian, bisexual, and transgender patients may be denied health care.
Thursday’s announcement is not so much a change in policy as a reorientation of the federal bureaucracy—a signal, like so many of the administration’s moves over the last year, of who the government will side with in conflicts over religious rights. Just as conservative groups geared up for battle under the Obama administration, liberal groups are readying to do the same. While Rocklin may be hoping that religious freedom in health care will become uncontroversial under President Trump, it’s unlikely that his prayers will come true.
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