Religious Freedom in the Health Care Professions: Religious Rights, Impending Threats, and Taking a Stand

I

Religious freedom is a fundamental right of paramount importance

I begin with the truth that religious freedom is a fundamental human right—a right that is essential to mortality’s central purpose of exercising our divinely granted moral agency to make righteous choices leading to eternal life. Religious liberty is the protected space in which that agency is nurtured and thrives. It allows the flourishing of our faith, which is so central to our lives. Our faith defines who and what we are—reaching deep into our very souls, our very identities. That alone justifies the protection of religious liberty as a fundamental human right.

Respecting religious freedom as a fundamental right means that law and society should afford sufficient space so that people and institutions of faith can live out their deepest beliefs freely and openly. As Elder D. Todd Christofferson has taught:

“A robust freedom is not merely what political philosophers have referred to as the ‘negative’ freedom to be left alone …. Rather, it is a much richer ‘positive freedom—the freedom to live one’s religion or belief in a legal, political, and social environment that is tolerant, respectful, and accommodating of diverse beliefs.” ¹

While religious freedom cannot be absolute, wherever reasonably possible it should be accommodated. If we truly care about human rights and dignity, it’s simply the right thing to do.

II

General threats to religious freedom

But religious freedom, as Elder Christofferson recently reminded us, is “under fire.” ² It is easy for pundits to dismiss concerns about religious freedom as overblown and merely an excuse for not having to live by society’s rules. But make no mistake. The current threats to religious freedom are very real and growing rapidly. Eugene Volokh, a law professor at UCLA, was quoted in The New York Times as saying:

“If I were a conservative Christian (which I most certainly am not), I would be very reasonably fearful, not just as to tax exemptions but as to a wide range of other programs—fearful that within a generation or so, my religious beliefs would be treated the same way as racist religious beliefs are.” ³

Although the great majority of Americans are willing to let others believe and worship as they choose, the sphere for the free and open exercise of religion is shrinking as society grows more hostile toward religion, especially organized religion, and as government enforces secular values in areas once considered private. A major flashpoint, of course, is the ongoing sexual revolution and the increasing use of nondiscrimination laws and other coercive means to force acceptance of secular views of marriage, family, sexuality, and gender that directly conflict with profoundly important religious beliefs and ways of life.

If we had time, I could provide many examples from diverse areas of law and society. To take just two examples, religious colleges like BYU are under attack. A recent bill introduced in California’s legislature sought to deny religious colleges so-called “Cal Grants”—basically, state Pell Grants—if they have honor codes that uphold traditional moral standards. The bill failed to pass in the recent legislative session; but observers of the legislature believe that there’s a good chance it will pass next year. And then there is that big fight over the Department of Health and Human Services’ contraceptive mandate you’ve all heard about that could easily have been avoided with a modicum of sensitivity by government officials for the needs of religious groups like the Little Sisters of the Poor.

Threats to the Health Care Profession

I could go on and on with examples from various areas, but I want to focus this afternoon on four significant threats to religious freedom within the health-care professions themselves. You’ll be familiar with many of them, but others might be new. In mentioning these, it is not my purpose to be an alarmist, or a Henny Penny; the sky has not fallen just yet! Some of the examples of encroachments on religious liberty are anecdotal—disturbing events in some quarters that are not yet upon us generally but that may represent disturbing trends. However, others of these examples have already arrived; they are upon us now, raising troubling concerns and forcing difficult choices.

1. Repeal of existing statutory protections for medical practitioners’ religious beliefs and conscience.

The first significant threat is the ongoing campaign to repeal existing legal protections for the religious conscience of medical professionals. Here some history may be helpful.

In 1973, the United States Supreme Court’s decision in Roe v. Wade created a constitutional right to abortion. ⁴ As you well know, this became enormously controversial. In response, the federal government and many states passed legislation designed to protect doctors and other health care workers who object to performing or facilitating abortions. At the federal level, Congress and federal agencies enacted an assortment of laws and regulations, including the “Church amendment,” which allows private health care providers that receive certain federal funds to “refuse to provide abortion or sterilization if such services are contrary to their religious or moral beliefs.” ⁵ Additionally, 47 states and the District of Columbia passed laws allowing medical professionals to refuse to provide or facilitate abortions. ⁶

The scope of protection afforded by these “conscience clauses” varies, and often goes beyond just abortions or sterilizations. Forty-five states allow individual medical practitioners to refuse to provide abortions, and 43 states allow at least some institutional health care providers to do the same. ⁷ Twelve states allow health care professionals to refuse to provide birth control or contraceptive services. ⁸ Moving beyond reproductive issues, several states protect the religious beliefs of medical practitioners who object to assisted suicide or terminating life support. ⁹ Some states even permit practitioners to refuse to provide any medical service based on religious beliefs. ¹⁰

For doctors and other health care workers of faith, “conscience clauses” provide not only protections, but an important line of demarcation between what is legal and what is right. They strike a balance that acknowledges the right of a patient to seek out legally permissible treatments, while also respecting the right of a medical professional to adhere to his or her personal moral and religious beliefs and boundaries. But these valuable statutory protections are increasingly coming under attack.

In 2008, a United Nations body wrote that it was “deeply concerned about the insufficient regulation of the exercises of conscientious objection by health professionals,” and recommended that nations take measures to limit or remove conscience clauses “so as to ensure that women’s access to . . . [abortions and contraceptives] is not limited” in any way. ¹¹ It was not long before this call was heeded.

For example, in 2011 the Department of Health and Human Services rescinded a conscience clause regulation that permitted medical professionals to refuse to provide contraceptive and other services that violate their sincerely held religious beliefs. ¹² It was replaced with a regulation that limits conscientious objections to abortion and sterilization. ¹³ And just last year the State of Illinois substantially curtailed the state’s conscience clause law even for elective abortions. ¹⁴

2. New laws and regulations that require a practitioner to provide or facilitate services that violate his or her sincerely held religious beliefs.

The second threat comes not from the repeal of existing protections but from new laws and regulations that require practitioners to provide services that violate their sincerely held religious beliefs.

For example, several states now have regulations that require pharmacists to stock and dispense contraceptives and abortifacient drugs regardless of their religious beliefs, and regardless of whether such drugs are readily available elsewhere. While some lower courts have found that such mandates violate the Constitution, ¹⁵ a federal Court of Appeals overturned one of those decisions from the State of Washington and the Supreme Court declined to review the case. ¹⁶ 

In his dissent from the denial of review, Justice Alito warned that “[t]his case is an ominous sign . . . . There is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. . . .” ¹⁷

Some of the facts of this case are a chilling reminder of how far some public officials will go to coerce religious believers in the health care professions, even when it is entirely unnecessary to serve the needs of patients. Here is what Justice Alito wrote:

“When the [State Pharmacy] Board began to consider new regulations, the Governor of the State ‘sent a letter to the Board opposing referral [to other pharmacies] for personal or conscientious reasons.’ The State Human Rights Commission followed with ‘a letter threatening Board members with personal liability if they passed a regulation permitting referral’ for religious or moral reasons. And, after the Board initially voted to adopt rules allowing [religious objections and] referrals for reasons of conscience, the Governor not only sent another letter opposing the draft rules but ‘publicly explained that she could remove the Board members’ if need be.” ¹⁸

Ultimately, the board gave in to overwhelming political pressure. As the Board’s executive director admitted at the time, “legislators and [the] governor are telling us loud and clear that they expect the rule to protect the public from unwanted intervention based on the moral beliefs . . . of a pharmacist. . . . The moral issue IS the basis of the concern!” ¹⁹ In the lawsuit that followed involving the Stormans Pharmacy, where the owners objected to providing the “morning after pill,” it was absolutely clear that patients would suffer no real hardship because other pharmacies very close by were happy to provide the drugs. But that didn’t matter to the State or the federal Court of Appeals.

Another example of regulations that may force medical practitioners to violate their sincerely held beliefs is the recent HHS mandate regarding transgender procedures. It requires medical practitioners that perform certain procedures—such as hysterectomies, mastectomies and hormone treatments—to perform them for individuals undergoing “gender transition.” ²⁰ Despite requests from religious organizations and professional groups, HHS explicitly declined to include an exemption for religious practitioners or institutions that object. ²¹ In fact, it appears that the rule does not even permit doctors to refuse to operate even if they conclude that the procedure is not in the best medical interest of the patient. ²²

I predict there will be more of these types of regulations and mandates. And you don’t need me to tell you that these coercive measures are bad for religious freedom, bad for professionals, and bad for the practice of medicine. Indeed, if government can compel pharmacists to dispense birth control, or order surgeons to perform sex-change procedures, in violation of their religious beliefs, then why can’t it force doctors to perform abortions or assist with suicides? This is troubling territory. Medical professionals face an increasingly slippery slope.

3. Professional ethics and licensing standards that require conduct that violates sincerely held religious beliefs.

A third and analogous threat arises from state licensing boards, ethics bodies, and other professional “gatekeepers” that impose standards and practices that create powerful barriers to religious people entering various health care professions, or that force existing practitioners to choose between continuing their chosen profession and living their religion.

Consider the case of a Christian student enrolled in a counseling program at a public university. Because of her traditional religious beliefs about sexuality, she was forced to complete a “remediation plan” to improve her “ability to be a multi-culturally competent counselor.” Essentially, they sought to debunk her Christian beliefs regarding sexuality. When she refused, she was expelled. ²³

Another counselor, this time a professional, was fired from her job with the Center for Disease Control because she refused to lie about why she referred same-sex couples elsewhere for relationship counseling. The issue arose when she told a same-sex couple that her personal values would interfere with her ability to effectively counsel them. They complained to the CDC that the therapist was “homophobic” and the therapist’s supervisors suggested that she lie to future clients and tell them she did not have much experience with relationship counseling. She refused to lie, and so was fired. ²⁴

These examples occurred at public institutions, but private practitioners are also at risk. For example, California regulations permit professional licensing boards to revoke, suspend or deny licensure to a mental health professional who agrees to provide general relationship counseling to a same sex couple but declines to provide counseling on physical intimacy because of religious beliefs about human sexuality. ²⁵ And California is not alone in its approach. ²⁶

4. The punishment of health care professionals for religious speech or activities engaged in outside of their professional practice.

The fourth and final threat I wish to mention is the alarming trend of employees being punished professionally for private speech and conduct that is unrelated to the employee’s professional practice. We have seen this in a wide range of professions—teachers, firefighters, broadcasters, and more. Medical professionals are not immune.

For example, a highly qualified medical professional, who also happened to be a lay preacher in his Seventh Day Adventist congregation, was recently fired for statements he made while preaching from the pulpit at his church. The doctor, who had previously served as director of a city public health department and a member of President Obama’s Presidential Advisory Council on HIV/AIDS, was hired as a District Health Director for the State of Georgia. But his offer of employment was rescinded after state officials reviewed YouTube recordings of his sermons, which included statements reinforcing traditional biblical teachings on sexual morality. ²⁷ The doctor lost his job not for professional misconduct—and not for conduct in his capacity as a government official—but because of what he said as a private citizen, inside a house of worship, based on his sincere religious beliefs.

That is a very dangerous trend with potentially serious consequences for LDS professionals, most of whom hold Church callings. It could become hard to be a faithful Church member who openly believes in the Family Proclamation while working in the health care professions. It is already difficult socially within professional circles. But could it also become difficult as a matter of ethics and licensing? I’m personally aware of a recent situation where a state occupational board opened a formal investigation into an LDS counselor for things he said outside the professional context as a member of his stake high council.

And I could go on.

At its broadest level, the biggest risk may not even be governmental or legal, but social. Powerful cultural forces seek to characterize those with traditional beliefs as bigots. The risk—not yet a full reality—is that traditional believers, including within the health care professions, may soon be marginalized and penalized for their faith.

III

Defending Religious Freedom—Lift Where You Stand.

So, by now you are thinking, “Whose bright idea was it to invite this depressing lawyer to speak to us?” Frankly, I know well that it’s easy to feel discouraged by these developments. But, as previously noted, I say all this not to be alarmist. Rather, I lay out the situation as starkly as I have done to deliver a much different message. And that message is that we must run toward these challenges, not away from them!

Some of you may be wondering, doesn’t the First Amendment protect us from all this? While it is true that the First Amendment remains a bulwark against outright religious oppression, there are many areas where its coverage is untested and uncertain—meaning there are many areas where we as citizens will play a significant role in determining religious freedom. Here is a critical point we all need to remember: constitutional rights were never intended to relieve us of our duties as citizens of this great nation. I sometimes fear that we have relied too much on the Constitution to do the hard work of citizenship for us. The Constitution—including the First Amendment—was never intended to make us lazy citizens, to absolve us from the duty and imperative to be vigilant in defense of our religious freedoms. We have a duty to work with our fellow countrymen to find practical solutions to vexing problems—including clashes of rights and fundamentally competing interests.

This means we must learn how to get involved politically, socially, and professionally to both defend religious freedom as a fundamental right and to make appropriate compromises in the interest of fairness to others and peace.

Recently, Elder Christofferson spoke at the Freedom Festival in Provo about how ordinary citizens can defend religious freedom. He outlined a simple, four-part approach that applies to all of us:

First, he said we need to become informed. To defend religious freedom we need wisdom—indeed inspired wisdom. And that requires knowledge. It is vital that we become informed about religious freedom issues, including within our professions. We need to know what religious freedom means, what freedoms are most essential, what challenges religious freedom faces, and where reasonable compromises can be made.

Second, Elder Christofferson encouraged us to speak up with courage and civility. This is a fine line. On the one hand, we cannot be intimidated into silence by intolerant voices that claim to represent progress and open-mindedness. That tired bromide is getting old; such voices do not represent progress; and we cannot allow them to silence us. But by the same token, we must state our views with genuine civility. Seek true understanding. Acknowledge legitimate points. And explain why the freedoms you defend are so important to you, your family, and your church—make it personal.

Third, as President Uchtdorf would say, “lift where you stand.” This is critical. Get involved in the political, community, and professional organizations around you and express your concern and support for religious freedom. The time for an insular focus on just our own families, congregations, and practices is gone. We have to get involved in the community and professional organizations around us and encourage them to be respectful and supportive of religious freedom.

Finally, at all times, be an example of the believers so that others will see your good works, experience your genuine friendship, and be sympathetic toward your concerns. As Elder Christofferson said:

Americans tend to respect and protect what they believe is good. So let us show them the highest and best in our faiths—our willingness to love and serve others, to build strong families, to live honorable lives, to be good citizens. As our fellow citizens see the goodness of your faith, “they will want to listen to you and understand when you say your religious freedom is being abridged. They may not agree with you, or even understand entirely the issue that is so important to you. But if they know you and respect you because you are a true [example of the believers], they will be far more inclined to work toward a solution that respects [essential] religious freedoms.” ²⁸

IV

Conclusion

Elder Christofferson concluded his Freedom Festival remarks with a stirring call to action: “My friends and fellow citizens,” he said, “we live in challenging times. Religious freedom is indeed under fire. And things may get worse before they get better. But these are our times. This is our moment to defend our fundamental freedoms. With courage, conviction, and civility—drawing upon our noble heritage as Americans—each one of us can make a profound difference. As the great Winston Churchill said on the eve of the world’s greatest conflict, let us ‘arise again and take our stand for freedom as in the olden time.’ As fellow believers and citizens of this great nation, we can do no less.” ²⁹

Brothers and sisters, this is indeed our time to defend religious freedom. Wisdom, fairness, and love for our religious rights require that we engage with our fellow citizens, reaching across serious cultural divides, and find common ground so that everyone can live together in freedom and peace. May we each do our part to achieve that lofty goal. Thank you.

1. Elder D. Todd Christofferson, A Celebration of Religious Freedom (São Paulo, Brazil, Apr. 29, 2015), available at http://www.mormonnewsroom.org/article/a-celebration-of-religious-freedom 

2. Elder D. Todd Christofferson, 2016 Provo Freedom Festival Address; see also Press Release, Church of Jesus Christ of Latter-day Saints, Elder Christofferson Says Religious Freedom Is ‘Under Fire’ (June 27, 2016) http://www.mormonnewsroom.org/article/elder-christofferson-religious-freedom-under-fire  (last accessed Sept. 19, 2016).

3. Laurie Goodstein & Adam Liptak, Schools Fear Gay Marriage Ruling Could End Tax Exemptions, N.Y. TIMES, June 24, 2015.

4. See, Roe v. Wade, 410 U.S. 113, 153 (1973) (“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”)

5. 42 U.S.C. § 300a-7(b)-(e); See also, 42 U.S.C. § 2996f(b) (Legal Service Corporation funds prohibited from being used to compel any individual or institution to perform an abortion); 20 U.S.C. § 1688; 42 U.S.C. § 238n (protecting health care entities that decline involvement in abortions for any reason); etc.

6. See, Summary of State Policies, available at:  https://www.guttmacher.org/state-policy/explore/refusing-provide-health-services   (summarizing conscience clause requirements on a state-by-state basis).

7. Id.
   

8. Id.
   

9. Id.
   

10. See, e.g., 745 ILL. COMP. STAT. ANN. 70/3 (West 2006); MISS. CODE ANN. § 41-107-3(1) (2005); MISS. CODE ANN. § 41-107-5(1) (2005)

11. “Concluding Observations to Slovakia” ¶ 28-29, 43, 2008 available at: http://www2.ohchr.org/english/bodies/cedaw/docs/CEDAW.C.SVK.CO.4.pdf ; See also, similar recommendations made to Croatia, Italy, Poland and others.

12. 76 Fed. Reg. 9668-02 (2011) (Feb. 23, 2011).
    

13. Id.
    

14. Illinois SB 1564.
    

15. Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012), rev’d on appeal, Stormans v. Wiesman, 579 U.S. ____ (2016); Menges v. Blagojevich, 451 F. Supp. 2d 992 (C.D. Ill. 2006)

16. Stormans v. Wiesman, 579 U.S. ____ (2016).
    

17. Id., at 4.
    

18. Id., internal citations omitted.
    

19. Id., emphasis in original
    

20. 81 Fed. Reg. at 31455.
    

21. 81 Fed. Reg. at 31376.
    

22. Id., at 31429 (deeming such a procedure “medically necessary” as a matter of federal law, without regard to the opinion, judgment and consideration of many medical professionals that hold views to the contrary).

23. Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011).
    

24. Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277 (11th Cir. 2012).
    

25. BAPC § 125.6(a)(1) “[w]ith regard to an applicant, every person who holds a license under the provisions of this code is subject to disciplinary action under the disciplinary provisions of this code applicable to that person if, because of any characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code, he or she refuses to perform the licensed activity or aids or incites the refusal to perform that licensed activity by another licensee, or if, because of any characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code, he or she makes any discrimination, or restriction in the performance of the licensed activity.” (emphasis added).

26. See, e.g., Idaho and New York codes (and many others).
    

27. For a complete description of the case, see: http://firstliberty.org/cases/walsh/#simple3 
    

28. Elder D. Todd Christofferson, 2016 Provo Freedom Festival Address, quoting D. Todd Christofferson, Watchmen on the Tower: Religious Freedom in a Secular Age, CLARK MEMORANDUM 11 (Spring 2015).

29. Elder D. Todd Christofferson, 2016 Provo Freedom Festival Address, quoting Winston S. Churchill, Blood, Sweat, and Tears (1941), 66.