In the News 2016
US News and World Report

Prognosis: Complicated

Debates over religious liberty are as old as the republic, but recent policies have reignited the public’s interest in them. Whether it’s President Barack Obama’s signature health care law or an expansion of LGBT rights, groups on the right have taken notice and are fighting back against policies they say are infringing on their right to practice religion.

The latest example came this week from states and religious groups who claim the Obama administration’s rule against discrimination of transgender patients would obligate them to perform gender reassignment surgeries on children. The plaintiffs say the rule infringes on their medical judgment and religious beliefs, while proponents have pointed out that it does not, in fact, require specific procedures at all.

But a long-simmering battle between the government and Catholic hospitals illustrates the great divide in the nation. Catholic hospitals, which treat one in six patients, prohibit doctors from performing certain procedures like abortion or prescribing certain medicines like those used in some states to hasten the death of terminally ill patients. Supporters say this should be allowed because of conscience objections that equate these practices to ending a life, but others question the legality and morality of placing such restrictions, especially when a Catholic hospital may be the only choice or the only one insurers will include in a health plan.

Groups like the American Civil Liberties Union have called Catholic hospitals, which are growing in number, a threat to reproductive care because they are governed by directives issued by the U.S. Conference of Catholic Bishops, which prohibit sterilization and abortion, as well as some infertility treatment and contraception. Some groups have raised concerns about various scenarios that these hospitals might find objectionable, including whether a female patient would have access to emergency contraception after a sexual assault or whether an unviable fetus would be removed. They stress that at least referral for these services should be available.

“In some cases you have unsophisticated patients in emergency situations, and if the Catholic hospital refuses to treat or doesn’t provide referral, then that patient may have no way to find out [their options],” says Douglas Laycock, a professor at the University of Virginia School of Law and a leading expert on religious liberty.

And for some experts, it comes down to having access to legal procedures and the hospitals serving populations that don’t necessarily share their beliefs. Should they be allowed to use religious liberty as a way to deny care?

“On the one hand, religious organizations – which provide a significant amount of health care in this country – often have pretty firm beliefs on particular medical and ethical issues,” says Tim Jost, an emeritus law professor at Washington and Lee University School of Law. “On the other hand, they serve people who don’t share those beliefs.”

Catholic hospitals have also faced scrutiny because they accept some public funds. Sara Hutchinson Ratcliffe, domestic program director at Catholics for Choice, says she takes issue with Catholic health care institutions accepting federal and state funds but refusing care that is legal.

“If you’re going to take public dollars to care for the general public then you need to play by the same rules everyone else does,” she says.

Despite all of the recent furor, Sister Carol Keehan, president and chief executive officer of the Catholic Health Association, said in an email that she was confident that Catholic hospitals’ beliefs and consciences would continue to be respected.

“Catholic health care has a long history of providing quality, compassionate care to American families and communities, always with a special attention to persons who are poor and vulnerable and at the margins of society,” she said. “Our organizations have delivered this level of care motivated by faith, always respecting the dignity of each human person.”

Luke Goodrich, deputy general counsel for the Becket Fund, shares similar sentiments.

“Our country has a long tradition – especially in the health care context – of not forcing people to violate their conscience, particularly in the area of taking human life,” he says.

Bolstering the religious liberty position was the Supreme Court’s decision in 2014 ruling that companies owned by religious employers could be exempt from providing certain types of contraception under Obamacare, and earlier this year it asked the Obama administration and religious objectors to continue working at negotiating a compromise.

More compromises may be ahead. Some think providing a middle ground where doctors refer patients to other physicians or hospitals is the appropriate step forward. Still, that’s a problem for Catholic hospitals which for the most part refuse to even refer.

Groups that could benefit from such a compromise in particular are medical staff who do not share the same beliefs as their employer, and want to provide certain services for their patients.

Dr. David Grube, medical director for Compassion and Choices, which supports aid-in-dying laws, says he knows a physician who worked for a Catholic hospital in Oregon who lost his job after prescribing aid-in-dying medication, which has been legal in the state for nearly two decades.

“He had signed the contract to abide by [the directives] but didn’t really think anybody would force the issue,” Grube says.

Grube says he believes it’s ethical for doctors to refer patients when they ask about aid-in-dying if they cannot provide the service themselves – in the same way that a doctor who isn’t trained in a particular field would do.

“It’s unjust in my opinion that they could prevent options that are legal in their state,” he says.

Some states are moving to expand access to such referrals, but are receiving pushback. In Vermont, a law obligates doctors to refer patients to doctors who will help them with aid-in-dying, and Illinois passed a law requiring providers to refer women for abortions or sterilizations. Both resulted in lawsuit from the Alliance Defending Freedom.

Still, referrals may not be enough for some communities. In Washington state, a law that did not allow pharmacies to refuse to carry emergency contraception on religious grounds remained intact after the Supreme Court declined to hear the case. The pharmacists had referred patients to numerous other pharmacies that stocked the drug nearby, and even called ahead to secure it.

Goodrich says some health care workers won’t compromise on certain issues. “They will resign, quit or move,” he says. Some of these laws, he adds, are therefore counterproductive because they seek to expand access to certain services for patients, but ultimately result in limiting a range of other medical services.

In the end, it may be that an attempt at finding a middle ground results in more care options for patients. When faced with violating their core beliefs, Catholic hospitals may feel they have no choice but to shutter their facilities. This occurred in Illinois, where Catholic charities shut down their adoption services rather than follow the state’s requirement to allow children to be placed with same-sex couples.

Laycock says he isn’t aware of hospitals or medical facilities closing because of these laws but says he thinks that could be on the horizon.

“It’s a harsh result from the religious perspective,” Laycock says. “The other result would be a harsh result for the patient. There is not a good answer here.”

This piece was originally published by U.S. News.

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