The intersection of law, medicine and so-called “morality” in the U.S. healthcare system poses a serious threat to patients’ access to healthcare and information. That’s the overarching message sent by a panel of experts in medicine and law we convened in December of 2021. As part of our annual Secular Summit event, Secular AZ organized a discussion on refusals of service based on religious beliefs, featuring the following experts and moderated by Secular AZ Legal Director Dianne Post:
- Atsuko Koyama, MD, MPH, Clinical Asst Professor University of AZ, COM, Creighton University; Dpt of Child Health and Emergency Medicine, Valleywise Health Medical Center
- Professor Elizabeth Sepper, Professor of Law at the University of Texas at Austin
- Dr. DeShawn Taylor, MD, MSc, FACOG, board-certified OB/GYN, clinical professor, and owner of Desert Star Family Planning in Phoenix
You can see the full video here. Let’s summarize what these experts working in the fields of medicine and law have to say about how refusals of service based on religious beliefs affect patients.
In recent years, bills allowing healthcare providers — such as physicians, nurses and pharmacists — to refuse to provide medical services and information based on their moral beliefs or religious doctrine has swept the country. At the same time, we’ve seen an increase in hospital mergers lead to a skyrocketing number of religiously affiliated hospitals and clinics. About one in six hospital beds in the U.S. is in a Catholic-run institution and, in some states, as many as 40 percent of hospitals are religiously affiliated.
For patients seeking care, this consolidation has all-too-often led to refusal of service on religious grounds. A 2020 survey of almost 34,000 respondents found that refusal of healthcare on religious grounds was a top 10 priority, along with related issues such as access to abortion services and medically accurate sex education. We’ve seen instances of refusal from here in Arizona; as one of many examples, multiple pregnant patients undergoing c-sections in Sierra Vista have been denied tubal ligations because their Catholic hospital prohibits health services that prevent future pregnancies.
Why? Because even when Catholic hospitals are owned by a secular non-profit or for-profit health care system, their administration and staff must adhere to directives issued by the U.S. Conference of Catholic Bishops. These are directives that expressly prohibit all birth control methods, sterilization, abortion, some miscarriage management techniques, minimally invasive treatments for ectopic pregnancies, infertility treatments such as in vitro fertilization. But the harm doesn’t stop at reproductive healthcare.
Religious refusals of service mean that providers won’t honor patients’ advance directives if they run contrary to Catholic teachings. It means victims of sexual assault won’t be recommended treatments that would remove, destroy, or interfere with the implantation of a fertilized ovum, such as the morning after pill. And it means LGBTQI patients can be refused necessary care, including gender-affirming treatments and transition-related care.
However, the vast majority of patients — over 93% — don’t even consider religious affiliation when choosing a healthcare facility. (And even if they did, only 28% of Catholic hospitals actually specify how their religious affiliation affects patient care.)
This leaves many patients uninformed and unaware that they may be denied necessary medical care, all at a time when they’re most vulnerable. Secular AZ believes that patients should never be kept from making informed healthcare decisions nor be treated with discrimination based on the religious doctrines of healthcare facility owners or medical providers.
Dr. Koyama notes that the number of religious hospitals is on the rise, with Catholic hospitals providing about 14% of acute care across the country. In some states, Catholic hospitals provide more than 30% of the care. Patients at these hospitals will likely receive care that deviates from standard medical care. She emphasizes the need for patients to be proactive in determining what kind of care they may receive.
The ethical and religious directives, or ERDs, Catholic hospitals operate under mean that people in communities that have been historically oppressed continue to face significant barriers to equitable health care. The ERDs set by the U.S. Conference of Catholic Bishops address standard medical practices such as:
- End-of-life care
- Fertility management
- Gender affirming care
Catholic hospitals’ ethics committees — made up of clergy — have the final word on interpreting how ERDs are applied. All staff are required to abide by these directives.
Some of the ERDs are even attached to hospitals that are sold to non-Catholic entities, and thus still apply. Dr. Koyama relates a case in which she was unable to prescribe birth control at a secular-run, Catholic-owned hospital, and had to purchase her own prescription pad or even lie to ensure patients had access to necessary contraception in cases of severe cramps and bleeding. Pregnant patients have to travel miles out of the way during miscarriages to avoid Catholic hospitals, which won’t allow for straightforward procedures that physicians are trained to do as a standard treatment.
She also related the case of a transgender man who was denied a scheduled hysterectomy at Dignity Health, the largest private system in California, making his pronouns known to a nurse during a pre-surgical conversation. When he mentioned that his pronouns were he/him, the hospital cancelled the surgery the day before it was scheduled. The surgeon scheduled to perform the hysterectomy stated that it was clear the procedure was cancelled only because the patient was transgender.
In Arizona, private healthcare providers can restrict access to information and services if the institution rejects “due to sincerely held religious beliefs,” under AZ revised statutes 36-2154. We see this in cases such as when a CVS pharmacist refused to fill a transgender woman’s hormone prescription, and a Walgreen’s pharmacist refused to dispense a prescription to induce a miscarriage. Arizona is one of six states in which pharmacists can refuse to dispense contraceptives based on moral or ethical grounds.
While professional medical organizations support individual providers’ moral integrity, but recognize that if this conflicts with a patient’s physical or mental well-being, healthcare providers and entities have a duty to disclose which services they refuse to provide and to refer to other providers.
But in rural areas and places with limited access to healthcare, this becomes very difficult — there simply may not be other providers available. Dr. Koyama notes that she’s worked in emergency rooms where she’s the only provider, and in facilities where residents refuse to prescribe contraception, even in time-sensitive cases where the medication would prevent pregnancy without causing an abortion… even in cases of rape. Though this type of medication is considered standard care, patients’ access depends on who’s working that day.
As a provider of abortion services and gender-affirming care, Dr. DeShawn Taylor agreed that patient care is impeded by so-called conscious clauses guided by religious doctrine. She notes that a three-pronged approach is necessary to address the trials that patients face when trying to access reproductive healthcare and reproductive oppression:
- Reproductive health; addresses service delivery
- Reproductive rights; addresses legal issues
- Reproductive justice: addresses movement-building and intersectionality, especially how systems of oppression intersect to create unique issues for people situated at multiple margins
Reproductive justice further incorporates issues of bodily autonomy, the right to bear children or not, and the right to parent with dignity in safe and sustainable communities. But across the country, healthcare providers are using religious doctrine and moral beliefs to deny reproductive justice and deny access to information and services.
As Dr. Taylor says, the intersection of law, medicine and morality in the U.S. healthcare system poses a serious threat to reproductive justice. She notes that before Roe v. Wade, clergy and lay leaders from many faith traditions made referrals for safe abortion services; she further states that as a provider of faith herself, she does not see a moral high ground in the “religious right” and that their values track closely with racism.
Unfortunately, religious hospitals’ lobbying activities have won them the ability to refuse service on this so-called moral high grounds, while still receiving tens of billions in public funding dollars each year… and it’s not always possible for patients to simply find another provider. What happens when patients are low-income or on Medicaid? What if they lack access to a car, or live in a rural area where there aren’t any other medical providers available? In many cases, patients’ only option is to go to a religiously affiliated institution. These limitations are especially pronounced for people of color, who may often rely on Medicaid or community healthcare.
In addition, many religious institutions are not interested in balancing the needs of vulnerable communities with their religious practice. In many cases, patients who are turned away aren’t even told why they were refused medical care. This hinders their ability to seek care elsewhere.
Dr. Taylor shared an example of one of her patients who experienced this religiously based refusal of care; a woman in her early 30s, the patient had a breast cancer diagnoses and did not think she could become pregnant. When she experienced severe abdominal pains, she went to an emergency room at the local (Catholic owned) hospital, where she was diagnosed with an ectopic pregnancy.
The gynecologist on call refused to treat the patient with the standard medical treatment, due to the hospital’s ERDs. She was discharged from the hospital without any treatment, and without additional instructions. Still in pain, she called Dr. Taylor who then had fight the patient’s insurance to go through the process of getting the medication approved for outpatient use. Ultimately, Dr. Taylor was able to get the authorization for the proper medication, and the patient recovered… but the process took an additional 24 hours. In that time, the ectopic pregnancy could have ruptured, threatening the patient’s life.
Situations like this are all too common, because policy makers have too-long protected the “religious freedom” of healthcare providers at the expense of patients’ health and well-being. Ironically, the majority of Americans allowing health care providers to deny treatment on religious grounds.
Religious refusals harm people who are already marginalized, and show that discrimination is protected by law, all while these healthcare organizations receive taxpayer money. Physicians are supposed to do no harm. Americans expect healthcare providers to honor this commitment, regardless of religious beliefs.
Medical refusals of service also intersect with legal issues. Elizabeth Sepper notes that an analysis of the legal framework surrounding religious refusals starts with the Free Exercise Clause; originally, it offered relatively extensive protection when the law imposed a substantial burden on the exercise of religion. But in in Employment Div. V. Smith (1990), the Supreme Court interpreted the Free Exercise Clause in a way that empowered the passage of a number of “religious freedom” laws across the states. These versions of the Religious Freedom Restoration Act passed in 21 states.
Since, they’ve been used in a number of cases, mostly around rights to deny services based on religious beliefs. Denial of contraception and services to same-sex couples have been commonly seen under RFRA. A number of so-called Conscious Clauses also allow for refusals of abortion-related services. For instance, the Federal Church Amendment provides protection for individuals and organizations that don’t want to provide abortion-related services.
The result? Laws at both state and federal level that allow for refusal of service… and that harm patients. But it’s not just Catholic hospitals. Professor Sepper notes that other hospitals, including Presbyterian, Jewish, Baptist and even secular, may contract with Catholic hospitals, and comply with the same ERDs. Even if a Catholic hospital is sold to another entity, the new owner may still follow the ERDs.
There are even some hospitals that are public and religious. Prof. Sepper notes that the Establishment Clause should preclude public hospitals following religious restrictions. Unfortunately, it’s not the case, such as the hospitals at the University of Michigan, University of Maryland, Dell Seton Medica Center at the University of Texas are all examples of public institutions operating with taxpayer funding, a cross hanging on the wall, and restrictions based on religious values.
Prof. Sepper also notes that while transparency is important, it still doesn’t ensure that patients have access to the care they need. All too often, there just aren’t other options for a patient, due to insurance, financial or geographic limitations.
In summary, The intersection of law, medicine and “morality” in the U.S. healthcare system poses a serious threat. Watch the entire panel discussion here.