Monthly Archives: March 2018

Many doctors are motivated by their moral and religious beliefs to provide abortions. Why doesn’t HHS care about their consciences?

Cross-Posted to the Public Rights/Private Conscience Project’s Medium Page.

Related: PRPCP’s Comment submitted to the U.S. Department of Health and Human Services, here.

Over the past few years, the news has been filled with stories of religious hospitals that ban abortions even during medical emergencies, pharmacists who refuse to fill prescriptions for emergency contraception, and even a certain large arts and crafts chain store that objects to providing contraceptive insurance coverage for its employees. Conservative groups have advocated for increasingly broad laws and policies that allow such objectors to refuse to provide a wide range of medical care, regardless of their patients own beliefs or medical needs. Most recently, the Department of Health and Human Services (HHS) announced the creation of a new rule that would give medical providers, insurance companies, and employers a broad right to deny abortion, sterilization, contraception, LGBTQ+ health care, and other services that conflict with their religious or moral beliefs.

With such a pervasive focus on religious health care refusals, it’s easy to forget that many healthcare professional’s religious and moral beliefs point in the opposite direction— supporting the right to individual bodily autonomy and access to medically appropriate and comprehensive health care. Unfortunately for such providers, the proposed HHS conscience rule entirely fails to protect them. Under the rule, while no health care employer can require its employees to participate in abortion, sterilization, or certain other services, employers are free to prohibit employees from providing this care.

For countless doctors and nurses, the dictates of their conscience drive them to provide abortion care, despite the risks this poses to their professional career and personal safety. To give just a few examples: Dr. George Tiller, who was murdered by an anti-abortion extremist while serving as an usher in his Lutheran Church, referred to his work providing abortion care as a “ministry.” Two members of Dr. Tiller’s staff echoed this view, stating respectively, “I felt I was doing the Lord’s work,” and “God put me here to do this work.” Dr. LeRory Carhart, an abortion provider and observant Methodist, stated in an interview, “I think what I’m doing is because of God, not in spite of God.” Dr. Sara Imershein has described providing abortion care as a “mitzvah,” and said that “No one should be able to step in the way of what I consider to be my moral obligation.” Last year, Dr. Willie Parker wrote an entire book describing his spiritual journey toward becoming an abortion provider and activist. Dr. Curtis Boyd, a Unitarian, first became an abortion provider when he was asked by a minister and member of the Clergy Consultation Service to perform the procedure illegally prior to Roe v Wade. Dr. Boyd explained, “Finally, my work had the larger meaning I’d sought. My religious ideals became immediate and personal.”

While some providers describe their work in explicitly religious terms, others portray it as a moral or ethical duty. Dr. Leah Torres, for example, has discussed her “moral and ethical obligation” to provide abortion care. Dr. David Gunn, who was also murdered by an anti-abortion terrorist, traveled 1,000 miles and worked six days a week providing abortion care because, according to his son, he believed “people would suffer without care if he refused.” Dr. Warren Hern has described his decision to provide abortion care even at great personal risk in deep-seated moral terms, stating that “women need my help” and that “If women are not free to make decisions about their own lives and health, they are not free. And if women are not free, none of us are free.”

As PRPCP explains in a comment we submitted to HHS this week, the agency’s proposed rule grants sweeping protections to those who would deny health care to patients, while doing nothing to protect those whose moral or religious duty to provide care is prohibited by institutional policies. Not only do such imbalanced protections fail to safeguard patients’ health, they also fail to ensure the very right the rule claims to defend—the right of conscience.

Not only is this imbalance unfair, it is legally suspect. If nothing else, the religious freedom guarantees of the First Amendment mandate that the government not take sides in a religious debate, or advance particular religious views at the expense of others. The proposed rule does exactly that—providing near-absolute protections for anti-choice religious views but extremely limited rights for pro-choice religious beliefs. (While providers cannot be punished for their activities outside the scope of their employment, they can be prohibited from acting on their religious obligation to provide comprehensive care within their job.)

The administration’s asserted interest in guaranteeing the right of “conscience” is belied by its one-sided policy, which protects only those to seek to deny health care and not those who seek to provide it.

MEDIA ADVISORY: Columbia Law School Scholars Submit Comment on Proposed HHS Rule

SUBJECT: HHS Rule Fails to Protect the Conscience of All Health Care Providers | Proposed Rule Ignores Providers Who Support Reproductive Health Care

FROM: The Public Rights/Private Conscience Project (PRPCP), Columbia Law School

CONTENT: “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”

CONTACTS:
Elizabeth Boylan, 212–854–0167, eboyla@law.columbia.edu
Elizabeth Reiner Platt, 212–854–8079, ep2801@columbia.edu


New York, NY, March 27, 2018 — In medical facilities across the country, doctors whose conscience would require them to perform a sterilization on a patient who requests one, offer truthful information about accessing abortion services, or provide comprehensive LGBTQ+ health care are forbidden from doing so by their employer. The conscience of such medical providers is entirely ignored by the U.S. Department of Health and Human Service’s (HHS) recently proposed rule that purports to “ensure that persons or entities” providing health care “are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.” As explained in a comment submitted today by the Columbia Law School Public Rights/Private Conscience Project (PRPCP), HHS’s proposed rule provides conscience protection only to those whose religious views match those of the administration. The rule is therefore legally suspect.

The HHS rule would enact sweeping protections for medical providers, health care facilities, insurance plans, and even employers who believe that abortion, sterilization, and other healthcare services are morally wrong. In contrast, it provides only extremely limited protections to those whose religious or moral beliefs lead them to offer their patients the full range of sexual and reproductive health care.

There are many such providers; studies and articles have described a wide range of conflicts between physicians who wish to provide reproductive health care to patients, especially emergency care, and faith-based medical facilities that prohibit this care. Furthermore, abortion providers frequently speak of their practice in religious or moral terms. To provide just a few examples, Dr. George Tiller referred to his work providing abortion care as a “ministry.” Dr. Sara Imershein has described providing abortion care as a “mitzvah” and said that “No one should be able to step in the way of what I consider to be my moral obligation.” Dr. LeRory Carhart stated in an interview, “I think what I’m doing is because of God, not in spite of God.”

“Under the proposed rule, a doctor who refuses to provide care that is medically indicated and requested by a patient is protected, while a doctor who does provide this care in accordance with her conscience can be fired,” said Elizabeth Reiner Platt, Director of PRPCP. “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”


The Public Rights/Private Conscience Project

The Public Rights/Private Conscience Project’s mission is to bring legal academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty. We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights. Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

To learn more, please visit us at http://www.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project

From Birth Control to Death: Facing Black Women’s Maternal Mortality

Event Announcement
Friday, March 30, 2018
From Birth Control to Death: Facing Black Women’s Maternal Mortality
Barbara Jordan Conference Center | Henry J. Kaiser Foundation
1330 G Street, NW | Washington, DC 20005
1:00 pm – 2:30 pm

Eventbrite: www.bit.ly/birthcontroltodeath

America has the highest maternal mortality rate of any developed nation, according to the World Health Organization which found that between 700 – 1200 women died in the United States each year from pregnancy or childbirth complications. The United States’ maternal mortality rate has more than doubled since 1990, climbing from 12 to 28 deaths per 100,000 births.

We know that not all women are equally impacted by this phenomenon. According to NPR and ProPublica, Black women are 243% more likely to die in childbirth than white women. However, what many do not realize is that Black women’s vulnerability to maternal mortality is not a class determined issue. Factors that contribute to pregnancy and childbirth complications include damaging stereotypes about Black women’s strength and resiliency, and the pervasive notion that their pain is less real than that of their white women counterparts – factors that impact all Black women regardless of their socioeconomic success, academic achievement, and overall health and wellness.

As much as Black women have been valorized for their strength, we must recognize the elements of this myth that constitute relics of slavery. The indestructibility of Black women has long been an excuse for overwork and under-protection, a rationalization for our exploitation and abuse that has morphed into a dangerous stereotype that we have all too often internalized. These assumptions gravely imperil and undermine Black women’s health, both mental and physical, and lead to higher rates of heart disease, strokes, and maternal mortality.

Additionally, pregnant women of color are at greater risk of being deprived of a range of reproductive health services in many US states as a result of their disproportionate use of Catholic hospitals, according to a new report released on January 19th by the Columbia Law School Public Rights/Private Conscience Project (PRPCP) in partnership with Public Health Solutions. Bearing Faith: The Limits of Catholic Health Care for Women of Color compares racial disparities in birth rates at hospitals that place religious restrictions on health care.  Catholic-affiliated hospitals are governed by the “Ethical and Religious Directives for Catholic Health Care Services,” a set of strict guidelines that prohibit doctors from providing contraceptives, sterilization, some treatments for ectopic pregnancy, abortion, and fertility services regardless of their patients’ wishes, the urgency of a patient’s medical condition, the doctor’s own medical judgment, or the standard of care in the medical profession.

The report finds that in many states, women of color are far more likely than white women to give birth at Catholic hospitals, putting them at greater risk of having their health needs determined by the religious beliefs of bishops rather than the medical judgment of doctors; This finding is especially troubling given that women of color already face a range of health disparities—including lower rates of insurance coverage and higher rates of pregnancy complications—which increases their need for comprehensive reproductive health care.

To hear radical discourse on the implications of these issues, and the steps we must take moving forward to address these systemic injustices, join the African American Policy Forum at The Barbara Jordan Conference Center in Washington DC on March 30, 2018 from 1:00-2:30pm for the closing panel of their week-long program, #HerDreamDeferred 2018: From Birth Control to Death: Facing Black Women’s Maternal Mortality.

The panel will feature remarks from Kira Shepherd, Director of the Racial Justice Program with Columbia Law School’s Public Rights/Private Conscience Project, among others, and will explore the ways in which stereotypes around the invincibility of Black women, their environmental circumstances and the gaps in culturally competent health care all intersect and interact to endanger Black women in specific and extreme ways.

Further details about this event may be found at Eventbrite; for questions about this program, contact Henone Girma at henone.girma@aapf.org, or Liz Boylan at eboyla@law.columbia.edu.

PRESS ADVISORY: PRPCP Responds to the Reintroduction of FADA in U.S. Senate

Press Advisory
FOR IMMEDIATE RELEASE:
March 8, 2018 

SUBJECT:

“First Amendment Defense Act” (FADA) is reintroduced in the Senate. Bill would establish vague, overly broad, and unnecessary religious accommodations and would seriously harm other Americans’ legal rights and protections. 

CONTENT:

“Not only is this bill unnecessary to the protection of religious liberty in the United States, its language would be harmful to the constitutional rights of millions of Americans.”

CONTACTS:

Professor Katherine Franke, 212-854-0061, kfranke@law.columbia.edu
Elizabeth Reiner Platt, 212-854-8079, ep2801@columbia.edu

New York, March 8, 2018–The Public Rights/Private Conscience Project is dismayed that the deceptively named “First Amendment Defense Act” (FADA) was reintroduced into the U.S. Senate today by Sen. Mike Lee (R-Utah) and 21 Republican co-sponsors, including Sens. Marco Rubio (Fla.), Ted Cruz (Texas) and Orrin Hatch (Utah).  Not only is this bill unnecessary to the protection of religious liberty in the United States, its language would be harmful to the constitutional rights of millions of Americans.

The Public Rights/Private Conscience Project Faculty Director, Columbia Law Professor Katherine Franke, testified against the First Amendment Defense Act on behalf of twenty leading legal scholars when it was pending in Congress in 2016.  In her testimony before the House Governmental Oversight Committee she provided an in-depth analysis of the meaning and likely effects of the proposed legislation, were it to become law.  The Public Rights/Private Conscience Project was particularly compelled to provide testimony to the Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.”  As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and religious liberty are real, nor do we hold the view that any such conflict should be addressed through legislation. On the contrary, we maintained that religious liberty rights are already well protected in the U.S. Constitution and in existing federal and state legislation, rendering FADA both unnecessary and harmful.

The Act purports to protect free exercise of religion and prevent discrimination, yet in fact it risks unsettling a well-considered constitutional balance between religious liberty, the prohibition on government endorsement of or entanglement with religion, and other equally fundamental rights.

Professor Franke’s testimony can be found here.

This legislation failed to come to a vote and died in Committee in 2016.  It should receive the same fate today.

The Public Rights/Private Conscience Project

The Public Rights/Private Conscience Project’s mission is to bring legal academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty.   We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights.  Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

To learn more, please visit us at: http://www.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project

 

Kira Shepherd, Director of the Racial Justice Project, to Moderate ABA Webinar on Civil Rights Protection in HHS

Wednesday, March 7, 2018
Announcement: Kira Shepherd, Director of Racial Justice Project, to Moderate ABA Webinar on Civil Rights Protection in HHS
Registration: https://attendee.gotowebinar.com/register/2177755790753598211

Tomorrow, March 8th, 2018, Kira Shepherd, Director of the Racial Justice Program with the Public Rights/Private Conscience Project will be moderating a discussion for the American Bar Association, titled, “Civil Rights Protection for Discrimination? Recent Developments in the HHS Office of Civil Rights.” Kira will be joined by panelists:

  • Jennifer C. Pizer, Law and Policy Director at Lambda Legal
  • Susan Berke Fogel, Director of Reproductive Health at NHeLP, and
  • Jamille Fields, of the Planned Parenthood Federation of America

The webinar will begin at 1:00 pm EST; Registration is required via GotoWebinar.com, at the following link: https://attendee.gotowebinar.com/register/2177755790753598211

After registering, you will receive a confirmation email containing information about joining the webinar.

A summary description of the discussion’s content follows:

On January 18, 2018, the Trump Administration announced a new division of the HHS Office for Civil Rights focused on the rights of health care providers to determine or deny care depending on the provider’s religious conviction. The following day, HHS issued a proposed rule to broaden the scope of existing laws that permit denials to care, and grant OCR new outreach, investigative, and enforcement authority to ensure that federal funding recipients defer to providers’ personal and institutional beliefs over patients’ needs. How are these developments likely to affect patients’ ability to obtain necessary health care? Is this new policy likely to have particular impacts on vulnerable communities such as transgender people, women and people of color? Does the new policy strike an appropriate balance between the rights of patients and the rights of providers? Our panel of experts will discuss the new division and rule in depth and offer their views of what appears to be expanded protection for health care refusals.

Kira Shepherd

Kira Shepherd is the Director of the Racial Justice Program at the Public Rights/Private Conscience Project at the Center for Gender and Sexuality Law at Columbia Law School. Before joining Columbia Law School she was the Executive Director and Director of Campaigns at The Black Institute (TBI), an action think tank that leads advocacy work in the areas of immigration, education, the environment, and economic justice.  Prior to working at TBI, Kira was a Campaign Manager at ColorOfChange.org, the nation’s largest online civil rights organization, where she worked on criminal justice and corporate accountability campaigns.  She also worked at the University of Pennsylvania’s Annenberg Public Policy Center where she managed a city-wide youth advocacy project that was instituted in every public high school in Philadelphia.  Kira has also worked with Families for Freedom, a human rights organization by and for families facing and fighting deportation, and Make the Road New York, the largest member-led economic justice group in New York.  Kira graduated from Rutgers University School of Law, Newark with a Juris Doctorate degree.