Category Archives: Abortion

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

Columbia Law Experts Denounce Federal Guidance Allowing Religious and Moral Discrimination in Contraceptive Coverage

Press Statement: October 6, 2017

Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) condemns the Trump administration for issuing sweeping new rules today that roll back the Affordable Care Act (ACA)’s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. These regulations place the religious and moral views of employers above the health and wellbeing of their workers and gut the contraceptive coverage provision of the ACA by dramatically reducing access to affordable birth control. Rather than protecting religious freedom for all Americans, these regulations are part of the current administration’s ongoing effort to advance a limited set of conservative religious beliefs while limiting the liberty and equality rights of women, LGBTQ people, people of color, and religious minorities.

For over seven years, the religious right has waged a battle to limit the scope of preventive health care services covered by the ACA, including essential reproductive health care. In 2014, they won a significant victory when the Supreme Court ruled in Burwell v. Hobby Lobby that secular for-profit companies could assert religion-based waivers from the duty to include health care coverage for contraceptives in their employee health plans. The Court’s opinion hinged, however, on the fact that women would still have access to such care, which would be covered by their insurance plan rather that their employer. After another three years of litigation and intense lobbying, anti-choice advocates have at long last succeeded in making it possible for employers to entirely cut off their employee’s access to contraceptive coverage, not only because of their religious objections, but now because of their moral objections as well.

In depriving workers and their families of essential health care coverage, the regulation violates both the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. By requiring workers to bear the cost of their employer’s religious beliefs, the regulation conflicts with a clear line of Supreme Court cases which hold that where a government-created religious accommodation imposes serious harms on others, it ceases to be a valid protection of personal faith and instead becomes an unconstitutional establishment of religion.

“With these new rules, the federal government is giving the green light to employers to discriminate against their women workers, and those seeking access to reproductive care, in the name of religious liberty or individual moral belief,” said Katherine Franke, Sulzbacher Professor of Law at Columbia Law School and Faculty Director of the Public Rights/Private Conscience Project. “The fundamental health care needs of working women are now held hostage by right wing interest groups,” Franke concluded.

As PRPCP’s Racial Justice Program (RJP) has noted in the past, these types of rules have an especially devastating impact on women of color. Women of color have higher unintended pregnancy rates than their white counterparts and face increasing difficulties in accessing care. Eliminating these disparities requires increasing access to contraception and family planning resources, which allow women of color to plan whether and when they have a child, which research has shown provides them with greater financial stability and freedom. “Research shows that teen pregnancy rates have dropped to an all-time low in recent years due to increased access to affordable, quality contraception and education about family planning,” said Kira Shepherd, Director of PRPCP’s Racial Justice Program. “Native Americans, Black communities and Latinas, who have the highest teen pregnancy rates of all communities, stand to be harmed the most by these new rules, which limit young women’s and people’s ability to make informed choices about their reproductive health and lives. Here, the Trump administration has once again shown that it cares little about the health and wellbeing of communities of color.”

“President Trump’s repeated efforts to ban immigration from majority-Muslim countries—which a circuit court said drips ‘with religious intolerance, animus, and discrimination’—demonstrate that the administration is not concerned with protecting religious freedom for everyone,” said Elizabeth Reiner Platt, Director of PRPCP. “These rules are just another demonstration of the ongoing effort to push conservative religious beliefs about sex, marriage, and reproduction onto others who do not share those beliefs.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-ACA-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia

 

Potential Consequences of Trump’s “Religious Freedom” Executive Order

Press Advisory: Potential Consequences of Trump’s “Religious Freedom” Executive Order

Date: May 4, 2017

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

Contact: Ashe McGovern | amcgovern@law.columbia.edu | 212.854.0167

Potential Consequences of Trump’s “Religious Freedom” Executive Order

President Trump is set to sign a far-reaching and constitutionally problematic executive order today. Although a draft of the final order has not yet been released, it will likely mirror, at least in part, a similar draft that was leaked earlier this year. While more detailed analysis will be necessary once the final order has been released, the leaked order raises the following issues. Specifically, the order:

Defines “people” to include for-profit corporations—even corporations that do not have an exclusively religious purpose. The order defines a “person” to be consistent with 1 U.S.C 1, which includes for-profit corporations.  This means that where the order affirms the right of “people” to act in accordance with a particular set of religious beliefs, including opposition to LGBTQ equality, it enables for-profit corporations to act in a discriminatory manner. These companies would be shielded from government intervention and enforcement of otherwise applicable laws, as long as they assert that their behavior is in keeping with a particular set of “religious beliefs.” The order also defines “religious organization” to include closely held for-profit corporations “operated for a religious purpose even if its purpose is not exclusively religious and is not controlled by or associated with a house of worship.” Thus an organization that is primarily engaged in secular activities, but claims to have some set of guiding religious principles—which the order fails to limit or define—could qualify as a religious organization. It would then be granted the protections religious organizations are given under this order.

Grants broad exemptions from federal civil rights and nondiscrimination laws to private and nonprofit organizations that are funded by the federal government to provide social services, education, healthcare, employment opportunities or other services to the general public. The order states that “persons and organizations do not forfeit their religious freedom” when contracting with the federal government in delivering services to the general public. This means that private organizations, even those that are funded by the federal government, will be shielded from claims that they have violated civil rights and nondiscrimination law as long as they claim their behavior is in accordance with a set of religious beliefs that they are free to define. This also means that the federal government will be unable to require religious grantees to provide publicly-funded services on a nondiscriminatory basis.

Enables federal contractors to impose their religious beliefs on their workers as a condition of employment. The order states that all agencies must provide exemptions to federal contractors and grantees consistent with religious exemptions found within the Civil Rights Act and Americans with Disabilities Act. These exemptions have been carefully tailored and limited by the courts, and do not currently apply to federal contractors. Applying them to federal contractors would impermissibly expand the exemptions, and allow federally-funded organizations to require that their employees follow particular religious beliefs or behaviors in order to remain employed.

Grants broad religious exemptions to federal employees acting in their official capacities as government workers, including workers that regularly interact with the public. The order requires agencies to “accommodate” the religious beliefs of federal employees, even where those beliefs conflict with their official duties as government employees. This could mean that a federal employee, who works for the Social Security Administration, for example, could refuse to process an application for a same-sex couple, a transgender person or a person of different faith, by stating that their religious beliefs prohibit them from doing so.

Directs relevant federal agencies to exempt any organization, whether religious or secular, from having to provide comprehensive reproductive services and healthcare to their workers. The order directs the Departments of Health and Human Services, Labor, and Treasury to issue an immediate interim rule that “exempts from the preventative care mandate…all persons and religious organizations that object to complying with the mandate for religious or moral reasons.” The order also directs HHS to take “appropriate actions” to ensure that “any individuals” who purchase health insurance on the individual markets, including federally facilitated and state sponsored health insurance, have the ability to purchase insurance that does not provide coverage for abortion and “does not subsidize plans that do provide such coverage.” This means that any for-profit employer can be granted a religious exemption from the requirement that they or their health plans provide contraceptive and family planning services. This would substantially broaden the Supreme Court’s holding in Burwell v. Hobby Lobby, which applied only to closely-held corporations. The order would also require state and federal exchanges to include plans that prohibit family planning services. Furthermore, it would preempt state laws that require health plans to cover birth control and abortion.

Allows federally-funded child welfare services and agencies to discriminate on any basis, including on the basis of race or religion, if doing so would “conflict with the organization’s religious beliefs.” This includes organizations that “provide federally funded child-welfare services, including promoting or providing adoption, foster, or family support services for children, or similar services.” This means that organizations that provide foster or adoptive services would be empowered to discriminate against same-sex couples, people of other faiths, unmarried people, or others whose relationships or behaviors do not conform to the organization’s particular religious beliefs.

Allows religious organizations and houses of worship to engage in political lobbying, while still maintaining their tax-exempt status. Specifically, this order would allow an organization that is speaking on a “moral or political issue from a religious perspective” to endorse or support political candidates. Currently, the tax code prohibits all 501(c)(3) organizations from endorsing or opposing political candidates. This provision would exempt religious organizations—and only religious organizations—from that mandate. The order also prohibits the Department of Treasury from imposing any tax penalty or burden to any organization that acts in accordance with beliefs that “marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy physiology or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”

Enacts far-reaching requirements on all federal departments and agencies to promptly rescind any rulings, directives, regulations, guidance, positions, or interpretations that are inconsistent with the order. This means that directives, rulings, regulations, guidance and interpretations that do not provide expansive religious exemptions may be rescinded or withdrawn by any agency or department of the federal government. This could include already existing protections enacted under the Obama administration for LGBTQ communities, women, and people of color, in their ability to seek access to reproductive services, employment, healthcare, education or social services.

Access a .pdf of this Press Advisory here.

For more policy analyses from the PRPCP, see our Policy Page, here.

Five Key Questions to Ask About the New Executive Order on Religious Liberty

Press Advisory: Five Key Questions to Ask About the New Executive Order on Religious Liberty

Date: May 3, 2017

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

Contact: Liz Boylan | eboyla@law.columbia.edu | 212.854.0167 

Five Key Questions to Ask About the New Executive Order on Religious Liberty

In February, a draft of an Executive Order (EO) on religious liberty was leaked from the Trump Administration. This order would have had sweeping effects on the enforcement of federal law by all government agencies. In addition to harming LGBTQ communities, it would have had ramifications for unmarried pregnant and parenting women, patients seeking contraceptive care, religious minorities, cohabitating adults and others. President Trump is expected to sign an updated draft of the EO this week. The Public Rights/Private Conscience Project (PRPCP) has outlined five questions to ask when analyzing and reporting on the new order.

For more thorough analyses of religious exemptions, please visit our website, which includes numerous publications on the legal and policy implications of funding organizations that discriminate based on religion, religious exemptions’ effect on women of color, and an analysis of the First Amendment Defense Act. Additional analysis of the EO will also be posted to our website in the coming days.

1) Who does the EO apply to?  

Religious exemptions are special rights that allow religious practitioners to violate laws that conflict with their sincerely-held beliefs. A religious exemption, like the forthcoming EO, can apply to houses of worship, religious organizations, and/or individuals. It’s important to read the definition of “religious organization” carefully, however, as this term can often include large corporations that appear secular, like a hospital system or even a for-profit company. The term “person” is generally defined by federal law to include for-profit, publicly-traded companies like Walmart and ExxonMobil. Thus if the EO provides religious exemptions to all “persons,” this would go beyond the Supreme Court’s ruling in Burwell v. Hobby Lobby, which held that closely-held, for-profit companies are entitled to religious exemptions under the Religious Freedom Restoration Act (RFRA).

2) What religious beliefs are protected? 

Recent proposed and enacted religious exemptions, including a leaked draft of the EO, have singled out for special protection particular conservative religious beliefs about sex, marriage, and reproduction. These include the belief that: 1) marriage is the union of one man and one woman; 2) sexual relations are properly reserved to such a marriage; 3) male and female refer to an individual’s sex as determined at birth; and 4) human life begins at conception. Providing government support for particular religious beliefs raises serious Establishment Clause and Equal Protection concerns, as highlighted by a recent federal court opinion.

However other parts of the previously-leaked EO appear to apply far more broadly. For example, the requirement that federal agencies should “not promulgate regulations, take actions, or enact policies that substantially burden a person’s or religious organization’s religious exercise” could cover any religious belief.

3) Who is authorized to grant a religious exemption?

RFRA is a broad religious liberty law that prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. Typically, it is the judiciary’s responsibility to interpret and apply RFRA through litigation between a private party and the government. The leaked EO, however, orders federal agencies to interpret (RFRA) preemptively in deciding whether or not to enforce federal laws.

For example, under the EO the Equal Employment Opportunity Commission could interpret RFRA to exempt employers with a religious opposition to hiring transgender workers from compliance with Title VII of the Civil Rights Act. It could then decline to bring suits on behalf of, or even provide right-to-sue letters to, transgender workers who are discriminated against because of their employer’s religious beliefs. In such instances, it could be difficult to challenge an agency’s overly-broad interpretation of RFRA.

4) Who is harmed?

It’s clear that the proposed EO will harm many LGBTQ people. Less obvious, however, are the sweeping effects it is likely to have on many other groups. The leaked version of the EO specifically protects religious opposition to sex outside marriage; a provision that could sanction discrimination against unmarried pregnant and parenting women and cohabitating, unmarried adults more generally. The leaked EO would also gut the contraceptive coverage mandate of the Affordable Care Act, limiting coverage of necessary health care.  Religious practitioners, and especially religious minorities, could also be harmed. The EO would allow discrimination against those who do not share their employer’s religious beliefs. Further, it places government support behind particular religious beliefs that many religious observers do not share, such as the belief that a fertilized egg should be protected over the health of a pregnant person.

5) Are government contractors and employees included?

The leaked EO would provide broad religious exemptions to government contractors and employees, which poses particular Establishment Clause risks. It states that organizations do not “forfeit their religious freedom” when receiving government grants or contracts and orders agencies to provide religious exemptions to grantees. It also orders agencies to accommodate both federal employees and grantees who act upon the four particular religious beliefs outlined in question two, above. Thus the EO would allow faith-based organizations to place religious restrictions on the use of government funds, and to discriminate while carrying out government programs. It would also protect government employees who wish to act on their religious opposition to LGBTQ rights, extramarital sex, and reproductive health care.

Download a .pdf of this press advisory, here.

For more legal analyses from the Public Rights/Private Conscience Project, see our policy page, here.

Proposed New York State Health Regulation Contains Troubling Exemption: The PRPCP Responds to a Proposal on Abortion Access

Cross-Posted on the Center for Gender & Sexuality Law Blog, and at Medium
______________________________________________

Press Release:
March 29, 2017

From:
Columbia Law School, The Public Rights Private Conscience Project

Subject:
Proposed New York State Health Regulation Contains Troubling Exemption: The Public Rights/Private Conscience Project Responds to a Proposal on Abortion Access

Contact:
Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

______________________________________________

A proposed New York State regulation requiring insurance plans to cover “medically necessary” abortions contains a broad religious exemption that would undermine the state’s longstanding commitment to reproductive health. The exemption—which is not required by New York’s Constitution or laws— defines the term “religious employers” to include large nonprofits and even some for-profit companies. In the face of a national movement to enact anti-LGBTQ and anti-choice religious exemptions, the regulation would set a harmful precedent by accommodating religion at the expense of other fundamental liberty and equality rights. On Monday, March 27th,  Elizabeth Reiner Platt, Director of Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) submitted a comment on behalf of the PRPCP to the NYS Department of Financial Services “to express [] deep concerns regarding the regulations’ expansion of New York’s existing definition of religious employers.”

Noting that religious liberty is already robustly protected in New York, PRPCP’s comment states, “allowing an organization that operates in the public sphere to violate neutral employee health and benefit laws serves to reduce, not enhance, true religious pluralism.  This is especially true when such accommodations single out particular religious tenets, such as opposition to abortion, for special protection.”

“The proposed regulation would allow organizations to treat a medically necessary procedure overwhelmingly obtained by women differently than any other type of care,” said Elizabeth Reiner Platt. “Rather than surrender to the troubling trend of protecting particular religious beliefs at the expense of reproductive health, New York should continue to be a national leader in guaranteeing access to comprehensive health care.”

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis. PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause.

Read the full letter from the Public Rights/Private Conscience Project here:
http://tinyurl.com/PRPCP-3-27

Read the NYS Department of Financial Services Proposed Amendment here: http://www.dfs.ny.gov/insurance/r_prop/rp62a48text.pdf

For more information on the PRPCP, visit the PRPCP’s webpage, here: http://tinyurl.com/PRPCP-Columbia