In the early aughts, when Dian Alarcón was new to this country and working for the Roman Catholic Archdiocese of Chicago, she developed endometriosis, a painful condition where tissue that normally grows inside the uterus grows on the outside.
One day in 2007, Alarcón was rushed to the emergency room, bleeding and in severe pain. She ended up spending two weeks in the hospital, incurring a $50,000 bill. She was uninsured, but the priest she worked for tried to get the Archdiocese to cover her care, including the birth control pills that would control her condition. This request was denied.
“They said it’s not possible to cover birth control for you,” says Alarcón, who now lives in Miami and works as field coordinator for the National Latina Institute for Reproductive Health. “But my condition was not for birth control but for a better life. I suffered too many pains every day from endometriosis.”
Alarcón’s experience, though shocking, is not unique.
Ever since the U.S. Supreme Court’s Roe v. Wade decision legalized abortion in 1973, the so-called Church Amendment, passed that same year, has allowed health providers to refuse abortion or sterilization services in the name of religious conscience. This and similar loopholes have allowed sectarian hospitals, Catholic health insurers, and church employers to discriminate and risk women’s lives by curtailing treatment.
Now the U.S. Department of Health and Human Services wants to enable even more health care providers—institutions and individuals—to refuse care or guidance, interfering with their autonomy in the name of religious freedom.
In January, the department’s Office of Civil Rights, led by anti-abortion activist Roger Severino, a Trump appointee, proposed a rule to expand the ability of people in health care to discriminate in the name of religion, not just against reproductive health but in treatment of LGBTQ and transgender people. The evangelical magazine Christianity Today wasted no time in sharing the news with an article headlined, “It’s Official: Trump Turns HHS from Pro-Life Antagonist to Advocate.”
In an HHS press statement, Severino said, “America’s doctors and nurses are dedicated to saving lives and should not be bullied out of the practice of medicine simply because they object to performing abortions against their conscience.”
The proposed rule portrays religious people as victims of “discrimination” who will now receive the vigorous support and investigatory powers of Severino’s new Conscience and Religious Freedom Division under HHS.
Outrage at the proposed “religious refusal” rule helped generate more than 200,000 comments submitted by the March 27 deadline. HHS is now supposed to review the comments before the rule can go into effect, usually a time-consuming process. But critics of the proposed changes are not optimistic.
“If you look at these rules, it’s 215 pages, you will find no discussion of this rule’s impact on patients. And HHS’s mission is to attend to the health of Americans,” says Louise Melling, deputy legal director of the American Civil Liberties Union. “We are defenders of religious freedom. We are the ACLU! But religious freedom doesn’t give you the right to harm people.”
In response to a request from The Progressive for answers to specific questions and concerns about the proposed rule, Severino provided a sampling of talking points. He says that “for too long health care practitioners have been coerced or discriminated against because of their religious beliefs and moral convictions on issues of life and death and fear they can no longer practice medicine.”
But, he adds, his office is “carefully considering” the comments that it has received.
The proposed HHS rule changes build on the successes of a coalition of mostly rightwing evangelicals and Roman Catholics, some 150 of whom came together in 2009 to sign the Manhattan Declaration. This statement laid out their view of religious liberty as a way to roll back advances in women’s reproductive justice and LGBTQ rights.
‘For too long health care practitioners have been coerced or discriminated against because of their religious beliefs.’
—Roger Severino, head of HHS’s Office of Civil Rights
“Because we honor justice and the common good,” the statement proclaimed, “we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
Trump has expressed support for allowing religious personnel to dictate the provision of health care and curb the rights protected by the Affordable Care Act. As President, he appointed Charmaine Yoest, former president of the anti-abortion bill mill Americans United for Life as HHS’s assistant secretary for public affairs. Americans United for Life, a Roman Catholic-oriented group, peddles junk science about abortion and birth control, with Yoest championing embryos as human lives cut short by the IUD.
HHS’s Severino, a Harvard-trained lawyer, was also pulled from the institutional Christian right. While he previously worked as a trial lawyer for the U.S. Department of Justice’s Civil Rights Division, more recently he was based at the Heritage Foundation as director of the DeVos Center for Religion and Civil Society. Heritage, a prominent rightwing think tank, is a meeting ground for evangelicals and Roman Catholics on the Christian right.
Before that, Severino was chief operations officer and legal counsel for the Becket Fund for Religious Liberty, one of the most successful litigators seeking to curtail LGBTQ rights and abortion access. In 2014, for instance, Becket litigated McCullen v. Coakley, which allows “sidewalk counselors” to wait outside abortion clinics, intimidating women who enter. One of its lawyers also participated in Burwell v. Hobby Lobby, in which the owners of the private retailer were allowed, based on religious belief, to avoid federal requirements under the Affordable Care Act to provide health insurance that covers birth control.
Led by Roman Catholics and heavily funded by the Roman Catholic Knights of Columbus, Becket seeks to insulate religious people and institutions from public scrutiny and legal accountability, even when using public money.
Despite a wave of lawsuits claiming that Catholic hospitals risked women’s lives by withholding care on religious grounds, “There’s no reference in the proposed Trump rule for what would happen in emergencies,” says Lois Uttley, director of women’s health for Community Catalyst, a nonprofit advocacy group. “That’s very troubling.” Even the Church Amendment nominally requires doctors and nurses to stabilize a woman’s health if her life is threatened.
“Another problem of the rule is that it goes beyond the Church Amendment and goes to refusing to provide a referral and refusing to provide treatment options,” Uttley explains. “At a minimum, you would expect they would stabilize the patient and transfer her to a hospital that could provide the surgery.”
Overall, Uttley adds, the proposed rule “seems to expand the range of people allowed to refuse, from the doctor and nurse to the receptionist and ambulance driver who would [refuse to] take you to the other hospital to get emergency treatment.”
The new rule would also interfere with the ability of states to tighten the oversight of religious refusal. For instance, last year, Illinois revised its law so providers can now refuse treatment only if they have protocols ensuring patients are informed of their options and given referrals to other providers. In proposing its rule, HHS told the story of an Illinois doctor who was barred by a federal court last July from suing the state for forcing her to make abortion referrals, showing the need for stepped up action by the agency to protect her.
The proposed rule change takes aim at the Affordable Care Act’s protection of women’s access to reproductive health services. It explicitly says it would would counter state-level laws now in California, New York, and Oregon that require health insurance to cover abortion care.
Adam Sonfield of the Guttmacher Institute, which researches reproductive rights, notes that “part of family planning services is giving information about all of a woman’s options—just get the information out there in a factual way. Anti-family planning groups have objected to that for a long time.”
‘This is terrible for women and the community. And terrible for the relationship between doctors and nurses with the community because there is no more trust.’
—Dian Alarcón, reproductive health advocate
Alarcón, in her role with the National Latina Institute for Reproductive Health, agrees. “You don’t need your personal beliefs in this conversation,” she says. “This is terrible, terrible in fact for women and the community. And terrible for the relationship between doctors and nurses with the community because there is no more trust.” Patients don’t necessarily know if their provider is withholding information on religious grounds.
Alarcón has also been taking on anti-abortion counseling centers in Florida, which try to shame women away from exercising their right to abortion. Some states like California have begun regulating these centers so that they display information on family planning and abortion care. This proposed regulation portrays such state laws, now in the courts, as a violation of religious freedom.
The proposed rule also does not seem to respect the religious workaround crafted under Title VII of the Civil Rights Act of 1964, which requires advance notice if the physician objects to a procedure or the pharmacist does not want to dispense birth control on religious grounds. The advance notice lets the health care provider find someone else available to do so.
In arguing that the change is needed, HHS complains about an ongoing ACLU lawsuit waged in April 2017 on behalf of Evan Minton, a trans man in California who was denied a hysterectomy as part of his transition. The denial was made on the grounds of religious freedom by Mercy San Juan Medical Center, a hospital in the Catholic Dignity Health system. The hospital regularly performs hysterectomies, but canceled this one when it heard Minton was transgender.
While trans people are a relatively small number of patients, they can face an outsized amount of discrimination from the proposed HHS rules. And this is only the latest action of HHS, which also has scrubbed any mention of the health needs of LGBTQ people from its strategic plan, and posted a revision to allow Medicare and Medicaid-funded care facilities to discriminate against same sex couples.
HHS also complains about ACLU suits on behalf of Tamesha Means, who returned to a Catholic hospital in Muskegon, Michigan, three times in December 2010 desperately seeking care after her water broke and she began having contractions when she was eighteen weeks pregnant. Far from stabilizing her health, the hospital followed “Ethical and Religious Directives for Catholic Health Care Services,” established not by doctors but by the U.S. Conference of Catholic Bishops. Means was not told that her membranes and amniotic sac had ripped, and that her amniotic fluid dropped.
“This diagnosis represented a significant risk to her health and the near certainty that her fetus would not survive, much less explained that pregnancy termination was a standard treatment option in such circumstances,” wrote Means’s lawyers. On a return visit the next morning, Means was not told that the doctor suspected she had a bacterial infection which “can cause serious damage to a woman’s health, including infertility and even death.” In dreadful pain, Means returned that evening, and gave birth to a baby that died three hours later.
The hospital was more concerned with making sure Means gave birth than it was for her health. And in 2016, a whistleblower from the county health department revealed this same hospital risked the lives of four other women suffering from miscarriages within a seventeen-month period.
Dr. Debra Stulberg, a family physician on the faculty of the University of Chicago, has spent time researching Roman Catholic hospitals after working in one.
“Most women, when they walk into a Catholic hospital, don’t know what they’re getting into,” she says. “The rules about what you can and can’t do in a Catholic hospital are set by the bishops. They’re not determined by doctors with medical training.” And patients at these hospitals “don’t know what they don’t know.”
Stulberg’s 2012 national survey and follow-up interviews with obstetrician-gynecologists working in Catholic hospitals found 52 percent faced a conflict in providing patient care because of the rules. She and her coauthors found obstetricians blocked from doing a tubal ligation after a caesarean, unable to provide full care for their patient, or being forced to transfer patients to other hospitals in the midst of a crisis. They also found doctors who self-censor because they worry they will violate the bishops’ directives.
“It had a chilling effect,” she says.
Most women, when they walk into a Catholic hospital, don’t know what they’re getting into. The rules . . . are set by the bishops.’ —Dr. Debra Stulberg, family physician with the University of Chicago
While not all religiously affiliated hospitals are Catholic, Stulberg says Catholic hospitals “are unique in how top-down they are in their ethical practices.”
And these practices, written by bishops, don’t have the support of most U.S. Roman Catholics. In its comment to HHS on the rule, Catholics for Choice wrote, “Conscience protections need to extend to provider and patient alike.” It noted that 70 percent of U.S. Catholics surveyed by the group say health providers shouldn’t use religious beliefs to deny care.
The number of Catholic-owned or Catholic-affiliated hospitals is growing. In 2016, they made up 14.5 percent of the total. They account for one in six acute care hospital beds, and, because of the Church’s historical mission to serve the poor, can often be the nearest hospital serving a low-income neighborhood.
That means some of the worst burden of religious refusal has fallen on poor communities and particularly poor communities of color, which rely more on Roman Catholic hospitals. More than 75 percent of the mothers giving birth in New Jersey and Maryland Catholic hospitals are women of color, according to “Bearing Faith,” a 2017 study from Columbia University Law School’s Public Rights, Private Conscience Project. The authors wrote:
Pregnant women of color are more likely than their white counterparts to receive reproductive health care dictated by bishops rather than medical doctors. The religious guidelines governing care at Catholic-affiliated medical institutions prohibit a wide range of necessary services related to contraception, tubal ligation, and certain treatments for pregnancy complications. The restrictions depart significantly from standards of care established by the medical profession.
So black women who face dangerously high mortality in childbirth, and black infants who die at levels far above other babies, heavily depend on Roman Catholic health care providers who won’t induce abortion in dangerous situations as long as the fetal heart beats. Rather than take on this malpractice, the HHS rule will make it even more widespread.
Tamesha Means and Dian Alarcón are coming forward with their stories to fight religious refusal. For Alarcón, it is a matter of principle.
“Religious teaching for me is spiritual, and respect for your spiritual space, so you are in control of the decisions,” she says. “The woman is alone. And it is very scary.”
This article was originally published in The Progressive.