What the First Amendment Means For Religious Freedom and Healthcare
By Rabbi Jack Moline

As a kid, I always took a certain pride in the number of Jewish names attached to hospitals. Beth Israel, Cedars Sinai, Montefiore and so many others reminded me that in cities across America, the Jewish commitment to healing had tangible expression. These institutions stood alongside institutions with names such as Lutheran General, Adventist and Holy Cross. In fact, I was born in Loretto Hospital, founded and run by an order of Roman Catholic nuns.
Eventually, I learned that, while some hospitals were founded out of principle, others were founded out of necessity.
Newly minted doctors belonging to minority faith groups faced difficulties while searching for positions at hospitals run by other faith groups — and sometimes even public hospitals. In response, these communities created their own healthcare solutions. Some did so to circumvent prejudice. Some did so to provide medical care consonant with faith values. And some did so for both reasons.
Historically, the overt link between religion and health care focused on the need to cultivate physicians who could tend to their own. Eventually, however, things changed. Today, it is nearly unthinkable that a hospital would refuse to hire an expert physician belonging to a different faith community than the one borne by the hospital.
As the sophistication of health care and medical practices become more sophisticated and available than ever before, the relationship between faith values and medical practices changed significantly. A Jehovah’s Witness who refused blood transfusions, a Christian Scientist who eschewed pharmaceuticals or an Orthodox Jew who would not consider a vasectomy might challenge the advice of a physician. The courts mostly upheld the rights of individuals to refuse medical treatments that violated their personal values. Those permissions affirmed the free exercise clause of the First Amendment, even when in medical terms, there might be a threat to the individual’s own well-being.
However, the First Amendment claims of healthcare providers have now moved into the spotlight in a way that differs from the past. Medical practitioners may find themselves constrained by their personal religious commitments from performing procedures that best scientific practice might indicate. They may be employed by faith-based health care institutions with values that do not match their own. Patients seeking medical attention may be denied legal and sound treatments because of the faith values of others.
Especially if there are public funds involved and/or there is no comparable alternative available to the patient, these actions seem to violate the First Amendment, rather than honor it. The “free exercise” clause allows personal choice. But the “(non)-establishment clause” prohibits the imposition of a religious standard by the government on those who do not freely accept it.
Matters became even more complicated when Supreme Court decisions, beginning with the “Hobby Lobby” case, began recognizing the right of individuals with deeply-held religious convictions to restrict legal health care benefits to employees of their businesses. Specifically, the owners of a business who object to certain protocols — in the case of Hobby Lobby, certain types of birth control — on religious grounds could refuse to include those benefits in insurance they provide, even to people who do not share those objections.
If it sounds complicated, that’s because it is. The attempt by conservative faith activists to dictate the behaviors of others under the guise of the First Amendment has thrown conversations about religious freedom into turmoil. The medical and health needs of individuals that are determined not by science and personal belief, but instead by the religious convictions of others, have real time consequences that frequently have no alternative resolution.
The value systems of people of differing faiths and philosophies are important contributions to the public debate about law and policy. When it comes to the law, however, personal conviction may require an individual to decline to exercise permissions for themselves, but not to deny them to others.
Health care policy is the most critical of circumstances to which that principle applies. No one ought to enter the deliberations of a free and egalitarian society with the attitude that they will accept the result — but only if they get their way.
When it comes to health care, the consequences of this principle are most important. It can make the difference between life and death.
