This story has been updated since it was first published on Jan. 18.
The new office, called the Conscience and Religious Freedom Division, is seen by many as a win for conservative religious groups that complained President Barack Obama’s administration did not prioritize religious freedom concerns. Critics, however, worry that the language is broad and could lead to discrimination.
Health and Human Services on Friday announced a proposed regulation, and the office will focus on reviewing complaints from medical professionals under existing laws.
The new enforcement initiative represents the administration’s latest effort to elevate religious liberty claims when such personal beliefs come into conflict with priorities like access to medical care. Conservative groups, particularly those opposed to abortion, welcomed the move, while critics warned it could lead to discrimination on the basis of sex as well as gender identity and sexual orientation.
“We are saying, with the launch of this division, you do not need to shed your religious identity, you do not need to shed your moral convictions to be a part of the public square,” Roger Severino, who directs HHS’s Office of Civil Rights, said at the announcement ceremony Thursday morning. Severino said the office has received 34 complaints since President Trump took office when there were only 10 complaints under Obama.
“Conscience protections” have become a flash point in culture war debates, especially about contraception and LGBT rights, in recent years. In a high-profile battle with the Obama administration, the Little Sisters of the Poor, a group of nuns, objected to HHS’s mandate that employers must cover employees’ contraception. In October, HHS introduced rules that would allow businesses or nonprofit organizations to object on religious or moral grounds and obtain an exemption.
Many religious liberty watchdog groups on the right see the new HHS office as a big win, according to Asma Uddin, founder of AltMuslimah.com and a fellow at the Initiative on Security and Religious Freedom at UCLA.
“It’s about implementing the religious liberties that are already there,” she said. “It’s significant in contrast to the years of litigations.”
A concern among many is that religious freedom is becoming a partisan issue dependent on whoever sits in office, said Michael Wear, who did religious outreach for Obama. The Trump administration, he said, has done little on religious freedom issues that will have much lasting change.
“The next administration could scrap this office their first day in,” Wear said. “It’s not necessarily putting [religious conservatives] in a better situation when they’re not in a favorable position politically.”
Wear said he would be more excited about this office if he felt as if the Trump administration prioritized civil rights issues more broadly, such as the Voting Rights Act.
“In the end, I think this office is going to be a target and more of a political firestorm than anything,” Wear said.
Some critics have raised the question of whether a medical professional could deny sex reassignment surgery to someone who is transgender. Robin Fretwell Wilson, a law professor at Illinois College of Law, said it’s unclear what the law would cover because agencies within the Trump administration haven’t agreed on whether gender is protected as part of sex discrimination.
If doctors saw this and brought a transgender case to HHS, she said, “creative HHS lawyers would then have the opportunity to decide, for example, whether ‘bottom surgery’ counted as sterilization and triggered the protection.’”
HHS’s Severino co-wrote a 2016 report for the conservative Heritage Foundation expressing concern over an Obama-era HHS proposal that doctors could be liable if they refuse to provide or pay for such hormones for gender-transition reasons.
Under Obama, HHS replaced a rule from President George W. Bush’s term that was interpreted as allowing medical workers to opt out of a broad range of medical services. Obama’s narrower version left in place only long-standing federal protections for workers who object to performing abortions or sterilizations. HHS also kept the Bush rule’s formal process for workers to file complaints.
Trump nodded to “conscience protections” in his executive order in May 2017 that was lauded by religious leaders in a Rose Garden ceremony, but many conservative religious freedom advocates didn’t think it went far enough in changing actual policy.
Some religious groups praised the office, which is calling explicitly for these kinds of “conscience protection” cases.
“I am thankful that HHS recognizes how imperiled conscience rights have been in recent years in this arena and is actively working and leading to turn the tide in the other direction,” Russell Moore, president of the Southern Baptist Convention’s lobbying arm, said in a statement.
Some critics also fear that the language used on the office’s website could be interpreted broadly to include services more than abortions or sterilizations. The Secular Coalition for America denounced the decision, saying in a statement that the new office threatens to undermine trust between doctors and patients.
“This move by the Trump administration does not protect conscience but instead weaponizes it, turning religious belief into yet another barrier between vulnerable patients and the health care they need,” said Larry T. Decker, executive director of the Secular Coalition. “The right to conscience does not include the right to impose your conscience on others.”
Helen Alvare, a professor at George Mason University’s law school, said the idea that health-care workers would have conscience protections is not new. It goes back, she said, to when President George Washington allowed Quakers to abstain from fighting in the Revolutionary War.
“This isn’t a get-out-of-jail free card,” Alvare said. “Their objection has to be balanced with state interests, as always.”
These kinds of protections were cited in Roe v. Wade, the Supreme Court’s landmark case that decided women have a constitutional right to an abortion.
“Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles,” the court’s decision states.
Several existing laws include protections for health-care workers, including the Church Amendment of 1973, which gave health-care providers in certain federally funded programs the right to object to abortion or sterilization, and sometimes to any procedure, on moral or religious grounds. The Coats-Snowe Amendment, which was intended to prevent governmental discrimination against medical programs that declined involvement in abortion training, was signed into law by President Bill Clinton in 1996.
In Thursday’s announcement, several government officials cited the Weldon Amendment, which prevents governmental discrimination against health-care providers that decline to perform, refer for or pay for abortions.
Recent cases involving “conscience” include high-profile claims from Hobby Lobby, which wanted an exception from providing certain forms of birth control, and Kim Davis, a Kentucky county clerk who declined to provide a marriage license to a gay couple. These claims have raised the question of how accommodations can be used to harm a third party, said Ira Lupu, professor of law emeritus at George Washington University law school. He pointed to Title VII from the U.S. Equal Employment Opportunity Commission, which says employers have to provide accommodations to employees with religious objections so long as it doesn’t cause “undue hardship to the employer.”
“These new claims of conscience are typically about complicity in somebody else’s ‘sinful behavior,’” he said. “These new conscience claims are leaping beyond earlier ones and are not mindful of the harm to third parties.”
The existing laws have been pretty specific to abortion or end-of-life care, and it’s unclear, Lupu said, how the new office would treat cases that aren’t currently listed as possible scenarios.
“There’s going to be a question of how it’s going to work and who, if anyone, is going to be harmed by it,” he said. “Until we see how it’s applied, you can’t say anything definitive.”