License to Discriminate: Trump’s Unconscionable “Conscience” Rules

Shannon Russell
Aug 6 · 4 min read

True religious liberty, cemented as one of our nation’s founding principles in the First Amendment’s Establishment Clause, signifies both freedom of and freedom from religion. But since his first day in office, President Trump has demonstrated a fundamental disregard for the latter and a relentless effort to enshrine one particular religious view into law. His administration has perpetuated the ridiculous notion that extremist Christian conservatives (categorically opposed to abortion, LGBTQ equality, and other civil and human rights) speak for all people of faith. We know this could not be farther from the truth.

Case in point: Roger Severino and his Office for Civil Rights (OCR) within the Department of Health and Human Services (HHS). Severino has built his career on open hostility to abortion and LGBTQ rights, all in the name of “conscience” and “religious liberty.” Look no further than the agency’s website — which was overhauled in April 2019 — for evidence of Severino’s role in strengthening and expanding “protect[ions for the] the exercise of religious beliefs and moral convictions by individuals and institutions participating in HHS programs.”

In January 2018, Severino celebrated the creation of the new “Conscience and Religious Freedom Division” within OCR, noting that the new division would “help guarantee that victims of unlawful discrimination find justice.” Here, the OCR Director was speaking not of the vulnerable patients who face systemic discrimination in health care, but of the health care entities and professionals who had complied with civil rights protections despite their personal prejudices.

In the same breath, HHS and OCR announced new rules unlawfully expanding existing refusals of care to allow any individual or entity involved in a patient’s care to deny services based on their religious or moral beliefs. Apparently, the Trump administration understands “protecting conscience” as authorizing a hospital’s board of directors, an insurance company, or even the receptionist that schedules procedures to refuse to provide an abortion for a woman in an acute medical crisis, to fire an employee for having a same-sex partner, or to override patient preferences for transition-related care.

Although the administration eventually delayed implementation until November 2019 amidst numerous legal challenges, the rules were still incorporated in yet another despicable proposal rolling back critical nondiscrimination provisions in Section 1557 of the Affordable Care Act (ACA). While working at the Heritage Foundation, Severino wrote that the regulations implementing Section 1557 “propose to penalize medical professionals and health care organizations that, as a matter of faith, moral conviction, or professional medical judgment, believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases.” Unsurprisingly, under Severino’s leadership, HHS and OCR moved to eliminate gender identity, sex stereotyping, and termination of a pregnancy from the ACA’s prohibitions against discrimination “on the basis of sex.” This plainly unconscionable rule cannot take effect.

Ultimately, the administration’s manipulation of religious liberty has one overarching theme: a push to make policy and to interpret the law based on a narrow understanding of evangelical Christianity. This view leaves no room for minority religions or atheists and completely disregards the separation of religion and state. The administration threatens the religious liberty of all people when it enacts policy to align with one interpretation of one religion, and when it allows employers, health care providers, and government officials to use their individual beliefs to thwart our nation’s civil rights laws.

Reflecting on Trump’s unconscionable “conscience” rules leads me to a question posed by National Council of Jewish Women CEO Sheila Katz, one that I think about often in my work at the intersection of reproductive health, rights, and justice and religious freedom issues: “At a time when so much emphasis is being placed on religious freedom, what about ours?”

Our Jewish tradition calls on us to celebrate and to depend upon religious liberty as a protective shield, not as a weapon to be used to harm and denigrate others. As each of us is made in the image of divine, b’tselem Elohim (Genesis 1:26), every single person’s health is paramount and unassailable; we have an obligation to care for and protect our bodies and our health and to ensure all others can do the same. The Jewish value of kavod ha bri’ot means that all human beings deserve respect, dignity, and access to the resources they need to make their own choices about their body, family, and future.

Fortunately, there is still time to make these views known and to take action against the Trump administration’s latest distortion of religious liberty: the Section 1557 proposal.

Refusals of care do not protect conscience; instead, the Section 1557 proposal would actually trample individual religious liberty by granting entire institutions the moral decision-making powers that should be left to patients and ignoring the deeply held convictions of those affirmatively called to provide patients with abortions or transition-related care. The Proposed Rule is an affront to our Jewish values and to the values of all people of faith who seek to eliminate all forms of discrimination, who rightfully view health care as a basic human right, and who respect the moral autonomy of the individual to make their own choices about the care they receive. Comment here to tell HHS Secretary Alex Azar and Director Severino that the Trump administration’s coordinated attacks on LGBTQ health and women’s health will not stand.

NCJW believes that discrimination has no place in health care, in our communities, or in our government. Our faith-based mission to pursue tzedek (justice) for all and to safeguard individual rights and freedoms means that we won’t stop until our religious liberty and the autonomy of all those who are discriminated against is fully valued and supported at all levels of government and in communities across the country.

Shannon Russell

Written by

Unapologetic feminist since ’93. Advocate for reproductive health, rights, and justice at the National Council of Jewish Women.

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