Alexa Kolbi-Molinas: Proposed Bush Administration Rule Fails to Strike Balance Between Religious Liberty and Access to Health Care

Proposed Bush Administration Rule Fails to Strike Balance Between Religious Liberty and Access to Health Care
by Alexa Kolbi-Molinas, Staff Attorney of the ACLU Reproductive Freedom Project
American Constitution Society for Law and Policy

Last Thursday, the 30-day public comment period closed on a controversial rule proposed by the Department of Health and Human Services (HHS) that would expand the ability of institutional and individual health care providers to refuse to provide services to which they have a religious or moral objection. If implemented, the rule could severely undermine access to reproductive health care, as well as other health care services for traditionally marginalized communities.

The proposed rule has generated a tremendous amount of controversy since it was released in late August – an astounding 200,000 comments were submitted to the Department during the comment period demanding that it be withdrawn. With good reason, too: not only is the rule unnecessary, but it also seriously jeopardizes patients’ access to essential health care services and vastly exceeds the Department’s authority under existing law. As the ACLU pointed out in its own comments, for more than four decades, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of religious belief, has required employers to attempt to accommodate current and prospective employees’ religious and moral objections to the provision of any health care service.

Title VII has long been understood to protect individual religious belief so long as patients’ needs are also met in a safe and timely fashion. Alarmingly – but perhaps not surprisingly for an administration that has routinely put politics and ideology before science and patient health – the proposed rule threatens to take patients’ needs out of this equation.

To begin with, the proposed rule dramatically expands the reach of existing refusal laws in ways Congress never intended. For example, the rule broadly re-interprets federal laws to allow providers to withhold basic information and counseling from their patients, absolving them of their legal and professional responsibility to the patient, and essentially abandoning patients in the face of a health care provider’s refusal. As a direct result of the rule, patients may never be able to access the refused health care – or even know about their right or option to do so. The rule could also create a blanket, unqualified right for individuals to refuse to participate in any health service or research conducted in programs supported with federal funds.

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