The Real Meaning of ‘Religious Liberty’: A License to Discriminate

This past January, on national Religious Freedom Day, President Trump announced a new set of recommended regulations that will make it possible for essential care providers receiving government funds to discriminate on the basis of religion. Under the new regulations, a nonprofit religious organization that accepts government grants will potentially exclude gay people from receiving certain benefits. Counseling organizations that receive vouchers or other forms of “indirect aid” from the government may be allowed to tell their patients that submission to God will solve their problems. Food pantries receiving government aid in a similar fashion may require that clients attend religious services in order to receive benefits.

All of them will be allowed to exercise faith-based discrimination in hiring. None of them will henceforth be under any obligation to inform the people receiving their services about secular alternatives, nor will the government be required to provide them. This is what “religious freedom” has come to mean in Trump’s America.

Religious nationalists have succeeded in framing the issue of religious freedom as one that involves wedding service providers, such as cake bakers, florists, and other sensitive people performing personal but also hardly life-saving or essential services. Setting aside the question of principle—Is it ever right to grant business a license to discriminate against law-abiding citizens in this way?—the implication of these narratives is that the stakes are small: Why not take your business over to a baker who will actually find some pleasure in helping you celebrate your happy day?

But to see what’s truly at issue in the Trump administration’s focus in the area of health care, it is illuminating to understand the consequences of religious exemptions that have long been in place within the Catholic health care system. This type of “religious freedom” for essential care providers has already become a matter of life and death for patients across the country.

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In an ACLU study (for which I served as an investigator), “Health Care Denied: Patients and Physicians Speak Out About Catholic Hospitals and the Threat to Women’s Health and Lives,” an Illinois doctor named David Eisenberg recalled that the sickest patient he ever cared for during his residency was a young woman experiencing a miscarriage. The patient had initially sought care at another hospital, which happened to be Catholic. Although her waters had broken, the hospital denied the necessary steps to hasten the safe completion of the miscarriage. Ten days later, the young woman transferred hospitals and came under Dr. Eisenberg’s care.

By that point, Eisenberg says, she had a fever of 106 degrees and was “dying of sepsis.” She survived, Eisenberg says, but suffered a cognitive impairment, as well as an acute kidney injury so severe that she required dialysis. The woman spent nearly two weeks in the hospital, after which she was transferred to a long-term care facility.

“To this day, I have never seen someone so sick,” Dr. Eisenberg says, “because we [in a non-Catholic health care facility] would never wait that long before evacuating the uterus.”

How is this possible? All Catholic Hospitals operate according to Ethical and Religious Directives (ERDs), a numbered set of rules that reaffirm Catholic teachings as they relate to health care. The ERDs impose limitations on the types of services and procedures they are able to deliver. Based closely on Vatican teachings and codified by the United States Conference of Catholic Bishops, these directives are thus the work of clergymen, not doctors. Employees of Catholic-affiliated hospitals and health care facilities must typically follow the guidelines as a condition of their employment.

Naturally, given Catholic doctrine on the topic, the ERDs prohibit the administration of abortions. Directive 45 states:

Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo.

What many prospective patients would not know is that, thanks to this prohibition, many Catholic hospitals either ban outright or are reluctant to perform a number of miscarriage-related procedures because the Church chooses to characterize them as abortions. A further critical fact is that the religious beliefs of the entity directing care at the hospital (in this case, the Conference of Catholic Bishops) trump the beliefs of everybody else involved. They supersede the religious convictions not only of patients, who in fact have no say and often no knowledge of the options, but also of providers. Physicians and staff employed by Catholic hospitals must abide by the ERDs whatever their own religion or moral conviction tells them.

The ERDs do not just apply to Catholic hospitals. All Catholic health facilities, including clinics, affiliated providers, and even contractors and suppliers, are bound by the ERDs. And such prohibitions are not just limited to abortion provision; they apply to birth control, too. Directive 52 spells it out:

Catholic health institutions may not promote or condone contraceptive practices but should provide, for married couples and the medical staff who counsel them, instruction both about the Church’s teaching on responsible parenthood and in methods of natural family planning.

I spoke with a medical doctor who asked to remain anonymous and whom I’ll call Dr. Reynolds who worked at an HIV clinic affiliated with a university hospital that had acquired a Catholic facility some years before. For Dr. Reynolds, Directive 52 presented a problem: some HIV medications, such as Efavirenz, which decreases the amount of HIV in the blood, are known to cause severe fetal malformations and other complications in pregnancy. Yet Dr. Reynolds was not allowed to prescribe medication to HIV patients for the explicit purpose of preventing pregnancy. “We still do not hand out condoms,” the doctor told me. “We don’t prescribe birth control.”

Dr. Reynolds recalled an experience with one patient, a young woman with HIV, who they wished to put on Efavirenz. “It’s a very potent antiviral medication, and has this very severe side effect of teratogenicity, which means it can cause severe harm to a developing fetus,” Dr. Reynolds said. “She said she wasn’t in a relationship and wasn’t sexually active. I gave her the medication and told her, ‘You shouldn’t get pregnant if you’re taking this.’” Because of the ERDs, Dr. Reynolds says, “I did not have the option of giving her birth control. I can do that by referring her out. But I could not prescribe birth control pills to prevent her from becoming pregnant on this med. She ended up getting pregnant and had a baby without a brain.”

Even before the Trump White House started to empower a much more expansive definition of “religious liberty” exemptions, the ERDs had broad reach in healthcare services because of the sheer scale of the Catholic network. One in six hospital beds in the United States is now in a Catholic-run medical facility, according to the ACLU report. Following a recent wave of mergers, the number is rising; in some states, the number exceeds 40 percent. Many Americans are, in effect, bound to accept treatment in Catholic facilities because there is no alternative within realistic travel distance.

The “religious freedom” of the Catholic health care system has long had far-reaching consequences for women and families across the country. America’s maternal mortality rate is already the highest among the nations of the developed world, and it is rising sharply, up by more than 26 percent between 2000 and 2015. In 2018, the Center for Gender & Sexuality Law, a law and policy think tank based at Columbia Law School, conducted a survey in conjunction with the healthcare nonprofit Public Health Solutions that examined the particular danger this arrangement poses to women of color. Black women are three to four times as likely as white women to die of pregnancy complications.

The authors of the project’s report, “Bearing Faith: The Limits of Catholic Health Care for Women of Color,” found that “in many states women of color disproportionately receive reproductive health care restricted by the ERDs.” In short, they reported: “Pregnant women of color are more likely than their white counterparts to receive reproductive health care dictated by bishops rather than medical doctors.”

There is no official count of the number of pregnant women who have turned to Catholic hospitals and clinics when something goes wrong only to be denied the medical care they need. And it is not easy to find women willing to publicize the most intimate details of traumatic experiences in order to prove to the world what should not need even saying: that pregnancy carries significant risk of complications, and hospitals and medical professionals in a modern society ought to allow best practices, rather than religious dogma, to guide their protocols of care. But I do know one woman willing to relate such an experience: myself.

In the last days of December 2003, I was thirteen weeks pregnant and filled with joy at the prospect of having a second child. Then, one afternoon, I began to bleed heavily and soon became faint. Leaving my toddler at home with my husband, I was loaded on to a stretcher and taken by ambulance to the nearest hospital, as ambulance drivers are often required by law to do. We were living in downtown Manhattan at the time, and so the ambulance took me to St. Vincent’s Hospital, a Catholic facility in the West Village that has since been shuttered.

By the time I arrived, my blood pressure was dangerously low. I felt I was passing in and out of consciousness. I know now that what I needed then was dilation and curettage, a D&C, the procedure that removes tissue from the uterus. I needed it immediately to staunch the bleeding, but hours passed and I was left to hemorrhage alone.

At some point, I started shaking; I was going into shock. I learned later that I lost nearly 40 percent of my blood. Only then did the hospital provide me with the abortion that saved my life.

When I was transported home, my two-year-old didn’t recognize me. It took weeks for me to recover from the loss of blood. It took much longer to stop reliving the experience in my mind.

I later inquired with the medical provider in order to review their records of the episode. I was able to confirm the amount of time that elapsed and the total loss of blood I had suffered, but I found no explanation for the delay in treatment. But given what I have since learned about the Ethical and Religious Directives under which St. Vincent’s would have been acting, I believe the hospital was willing to gamble with my life for the sake of preserving an imaginary child.

Since then, I have confirmed that patients commonly do not know when they are being denied treatment on “ethical and religious” grounds. Hospitals are not required to explain why they are denying service or to inform their patients about other options for treatment. Evidently, the Ethical and Religious Directives do not prohibit the practice of deceiving patients about their best interests or treatment options.

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The aim of the Trump administration is, in effect, to nationalize the concept behind ERDs. Henceforth, all providers will have the latitude to deny services wherever they feel that violates their own religious belief.

In January 2018, the Trump administration established the Conscience and Religious Freedom Division in the Office for Civil Rights at the US Department of Health and Human Services. From the name of the new unit, a visitor from outer space might have supposed that the purpose of the office was to guarantee the rights of health care patients to enjoy equal care and respect, without regard to their religion or other matters of conscience. The actual mission of the office is not to protect patients but providers. Its goal is not to ensure that patients get care but that providers may deprive them of it when it suits those providers’ religious beliefs.

Under the leadership of Roger Severino, a trial attorney with a history of right-wing legal activism and opposition to LGBT equality, the Office for Civil Rights first focused its efforts on making it easier for providers to abstain from caring directly for women in need of certain reproductive health services and for LGBT Americans. Then, on May 2, 2019, after declaring a National Day of Prayer, President Trump proudly broadened the unit’s mandate to cover essentially all health services and staff that receive federal funds. Announcing a new rule, known as Protecting Statutory Conscience Rights in Health Care, the Trump administration signaled that all health care industry personnel, from physicians and nursing staff to receptionists, ambulance drivers, ultrasound technicians, and schedulers would be permitted to refuse to serve or treat patients if doing so offends their personal “religious beliefs or moral convictions.”

Such a “liberty,” like the liberty of a medical institution to allow a woman to become septic to the point of cognitive injury, is really just a form of religious privilege. As a religious entitlement—a license to discriminate or deny treatment—it has increasingly become one of the chief talking points of leaders of the Christian right, who have made it work as a partisan appeal to both conservative evangelical Protestant and conservative Catholic voters. As a consequence, it won’t just be institutions now but also individuals that will have the “religious freedom” to revise or deny health care treatment to others on grounds of their own religious conscience.

And thanks to a huge influx of Trump-appointed federal judges—one hundred and ninety-two at time of writing, or over a fifth of the federal bench—and with more nominees pending, the judiciary is taking steps to entrench this new form of religious privilege. The greatest future gains for the Christian nationalist version of religious liberty, however, are likely to come from the Supreme Court.

During the now-forgotten part of then Judge Brett Kavanaugh’s Senate testimony, before questions about his temperament and alleged past sexual aggressions consumed the proceedings, the two senators from Texas, Ted Cruz and John Cornyn, both praised Kavanaugh as a jurist who would uphold “religious liberty”—that is, the religious privileges of conservative Christians at the expense of other people’s rights. Indeed, Kavanaugh repeatedly signaled his concurrence with this theory that now animates the Trump administration when Kavanaugh endorsed the appeal to “history and tradition” in discussing his record of defending certain forms of religious liberty.

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The Department of Labor is another arm of government that has taken up the cause, issuing guidelines proposing a rule that would exempt federal contractors from certain anti-discrimination laws if they attribute their violations to sincerely held religious beliefs. In July 2018, the then Attorney General Jeff Sessions followed up with his own Religious Liberty Task Force, highlighting the Trump–Pence White House’s true priorities.

Let’s suppose you run a company that builds and/or runs continuing-care facilities for seniors and you don’t approve of same-sex relationships. The conventional understanding of civil rights law says you can’t discriminate against gay people as customers. But the new theory of religious liberty argues that you should be free to exclude same-sex couples from your facilities as an exercise of your conscience.

That’s exactly what happened to Mary Walsh and Bev Nance, a couple from Sunset Hills, Missouri, who had been together for about forty years when, in July 2016, their application for an apartment in the Friendship Village senior living community was rejected; Friendship Village had reasoned that their marriage is not “understood in the Bible.” Nance and Walsh challenged the decision in court, but their petition was rejected, in January 2019, by a federal judge in the Eastern District of Missouri.

The religious liberty movement now seems set to reshape a range of care-provider services. In South Carolina, Aimee Maddonna, a mother of three, was turned away from a government-funded foster care agency, Miracle Hill, because she is Catholic. “You sound like you’d be the perfect mentor but we only accept Protestant Christians,” she was told by agency staff. At least one Jewish woman who also sought to volunteer with Miracle Hill was rejected for the same reason—that her faith background did not conform to the agency’s confessional standard. At least nine other states have passed laws that allow state-licensed child-placement agencies to refuse services to individuals and couples if they belong to the wrong religion or do not match the agencies’ sincerely held religious belief or, as mentioned by at least four state laws, simply “moral conviction.”

This version of “religious liberty” relies on two basic assumptions. The first is that the religion in need of protection of its liberty almost always belongs to a particular family of socially conservative Christianity. It then follows that if a commitment to human equality, a right to best-practices medical care in all medical settings, or reproductive self-determination forms the basis of your sincerely held religious beliefs, there is no liberty in this movement for you. The second is that the exercise of this liberty always involves a target group: whether that’s LGBT Americans, members of religious or ethnic minority groups, nonreligious Americans, or women in need of reproductive health services, even to save their lives, Christian nationalists, it seems, will find an object for their condemnation—even as they attempt to justify it by a false narrative of persecution.

The value of “religious liberty” for the religious right is therefore less about denial of services to particular people in need, and more about uniting and rallying support behind the broader religious-right movement. I saw this in action at the 2019 Values Voter Summit in Washington, D.C., an annual gathering of Christian right activists. A panel featuring people for whom anti-discrimination law poses a supposed threat to their “religious liberty” included Joanna Duka, a Christian calligrapher in Phoenix, Arizona.

“We are girls, we love weddings, but as Christians we have a special appreciation for the beauty of marriage,” Duka explained. “The city of Phoenix had a law that would threaten us with criminal penalties, including jail time, if we were to create art consistent with our beliefs.” In fact, no gay person or couple had asked Duka or her business partner to provide invitations or any other services to a same-sex wedding. But Duka, with the support of the Alliance Defending Freedom, a large Christian right legal advocacy group, went ahead and sued the city anyway, alleging that Phoenix anti-discrimination law violated her “religious liberty.” Presumably, the very thought that a gay couple might ask for her services was enough to constitute an alleged infringement of her freedom of religious conscience.

“The individuals here on stage, their experience was with the government coming in and trying to compel them to violate their conscience,” said Tony Perkins, long-time president of the Family Research Council, a leading right-wing policy group, who moderated Duka’s panel. “And thankfully under the current administration and through the court system we’ve been able to obtain justice for these clients here.”

The sham claim of persecution is too valuable in mobilizing the base to set aside just because it’s obviously a fable. It is used by leaders of the movement to solidify their power. The story of redemption under the Trump administration is a common theme in such company because in Trump the movement has finally found a leader suited to their cause.

This is the real meaning of “religious liberty”: the privilege enjoyed by certain favored groups to hold special status in our society, to claim public money and resources for themselves, and to identify a despised other and organize around their contempt of that enemy. Through the unlikely person of President Trump, the Christian nationalist movement has seized the levers of power at the heart of government. This is just the beginning.

This essay is adapted in part from the author’s book The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism, published on March 3 by Bloomsbury.