Undermining healthcare conscience rights

Two newly proposed rules by the Biden administration threaten the conscience rights of healthcare professionals and faith-based organizations that want to act on their Biblical beliefs about sex and gender.

The first rule seeks to update nondiscrimination provisions under the Affordable Care Act, or Obamacare, to add sexual orientation and gender identity to the list of groups protected from discrimination. The second rule expands the definition of “essential health benefits” insurance plans must cover to include treatments that suppress or change a person’s sex-specific physical characteristics.

For example, under the rule, insurance plans that cover hormonal treatments for any patients would have to also provide cross-sex hormonal treatments for those who wish to identify as another gender. Insurers that pay for women to undergo mastectomies or hysterectomies for cancer would also have to offer such surgeries to people with gender dysphoria—even though some who have had cross-sex surgeries now regret doing so.

The administration has also signaled plans to abandon Trump-era conscience protections as early as later this month, Politico reported. The rule protected medical professionals who, because of their religious convictions, declined to perform procedures such as elective abortions and gender transition treatments.

Alliance Defending Freedom’s Matt Bowman said the language of nondiscrimination masks the ethical dilemma for both medical professionals and private companies and nonprofits that object to the procedures.

“The Biden administration’s proposed rule would abandon healthcare professionals to being forced to perform medical procedures that directly violate their religious beliefs or risk losing their jobs,” said Bowman, calling the proposals an “illegal and gross overreach of executive power.”

Court challenges that could last for years will likely tie up the rules. Similar challenges to the Obama administration’s contraceptive mandate have persisted even after Supreme Court rulings curtailed its reach. In 2014, the court ruled the government could not force companies like Hobby Lobby to provide the contraceptive coverage mandated by the Department of Health and Human Services under the Affordable Care Act. In July 2020, the court handed Catholic nuns a win in Little Sisters of the Poor v. Pennsylvania, upholding an exemption for employers with religious and moral objections to providing contraception in group healthcare plans.

If the Biden administration withdraws conscience protections for healthcare workers, litigants will have to rely on the Religious Freedom Restoration Act (RFRA) to defend their conscience rights. The 1993 federal law protecting religious liberty carried the day in the Hobby Lobby case but was sidestepped in Little Sisters.

Biden administration rule-makers indicate they are simply bringing healthcare civil rights provisions into line with Bostock v. Clayton County. In that decision, the Supreme Court ruled that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination “on the basis of sex.” But Justice Neil Gorsuch, who authored the majority opinion, limited the ruling to the employment discrimination context. He also pointed to RFRA—what he referred to as a “super-statute”—as a shield for faith-based employers.

That shield has been under attack by LGBTQ activists. The Equality Act, which passed the U.S. House of Representatives in 2020 but faltered in the Senate, would have gutted many of its protections. But RFRA, which requires the government to show a compelling interest and use the least restrictive means in any action that substantially burdens religious liberty, has thus far held firm. Time may tell how “super” it proves.