A new rule proposed by the Department of Health and Human Services in mid-January, “Ensuring Equal Treatment of Faith-Based Organizations,” is intended to provide clarity about the rights and obligations of faith-based organizations and also eliminate certain requirements previously imposed on those organizations.
The rule, according to HHS, ensures that faith-based organizations have the rights and freedoms to which they are entitled under both the First Amendment and the Religious Freedom Restoration Act of 1993. The rule would implement President Trump’s executive order of May 2018, which seeks to “assist faith-based and other organizations in their efforts to strengthen the institutions of civil society and American families and communities.”
Part of the impetus of this rule is to reverse President Obama’s executive order, which required religious hospitals to refer a patient to other providers if the patient desired medical interventions — such as abortion or aid in dying — that contradicted the hospital’s religious values. The proposed HHS rule also reverses the need for religiously affiliated hospitals to notify patients that they may seek alternative providers.
Pushing for this type of governmental policy, however, may have long-term detriments that override any short-term benefits aimed at increasing religious freedom. It might also weaken the institutions of civil society and American families and communities that it aims to protect more than strengthen them.
This tension is important because faith-based hospitals make up a significant percentage of health care institutions in our nation. In some states, more than 40% of all hospital beds are in faith-based hospitals. And as the health care industry continues to grow, its impact on the U.S. economy and its reach with respect to social concerns grows in tandem.
This is HHS’ second attempt to propose a religious conscience rule, which allows health care institutions to refuse to provide medical procedures due to religious reasons. The first was blocked by a federal judge last November.
Religious institutions aren’t looking only to the executive branch to help expand their rights to exercise religious conscience. In August 2019, Centura Health, a Christian-run health system in Colorado, challenged Colorado’s End-of-Life Options Act, claiming that it constitutes an unconstitutional infringement on the corporation’s First Amendment right to the free exercise of religion.
When it comes to issues of religious conscience, secular public debate will not be persuasive in convincing religious individuals or institutions to abandon, or even revise, deeply held theological beliefs. No amount of argument will convince religious believers that their conceptions of life and death should have exceptions based on tenets they do not hold as true. What’s more, secular bioethicists and religious ethicists cannot even converse when they have no common ground to discuss norms and values on which they disagree.
If religious freedom and the choices of nonreligious Americans are to coexist, discussions cannot focus on questions of “What can I do or not do based on my beliefs?” but need to move to “What can I accept that others will choose differently?”
As a bioethicist and a rabbi, I believe that Jewish medical ethics can provide a means to think about securing both religious freedom and the rights of nonreligious Americans.
Like Christianity, certain denominations in Judaism have beliefs that contradict accepted values and norms of secular society. For example, some Jewish denominations do not allow abortion, except in certain circumstances, and prohibit facilitating death with dignity. Yet those denominations also recognize that religious adherents do not have the ability — or even the religious authority — to impose their values on others who disagree with them, even if the religious adherents believe that persons who disagree should share those religious values.
Even when those Jewish denominations assert that a religious adherent must exercise conscientious objection and resist going against their own religious values, a religious physician may nevertheless be permitted under Jewish religious law to refer a patient who desires to make a choice the physician disagrees with to an alternative provider. According to Jewish religious law, if the person can and will seek the medical procedure elsewhere, then a referral may not cause that person to do anything he or she wouldn’t be doing otherwise.
I am not advocating that Christian or other religious ethicists should simply adopt Jewish religious principles. That would be as arrogant as others imposing their own beliefs in today’s public sphere. What I am advocating is that both secular and religious ethicists and advocates recognize that we live in a multicultural country where there is a huge gap between what each side holds as sacred.
For public discourse to arrive at solutions that respect the rights and values of all Americans, we must start thinking more about how we can accommodate other people’s beliefs and less about how we can legislate our own beliefs on others.
Ira Bedzow, Ph.D., is an associate professor of medicine in the School of Medicine, director of the Biomedical Ethics and Humanities Program, and head of the UNESCO Chair for Global Work in Bioethics, all at New York Medical College.