It looks like any other government website: Just visually unappealing enough to give the impression of fluorescent lights in a waiting room, the icons just a little off center. The image in the center of the page is of a female doctor wearing a lab coat, stethoscope, and hijab. This is the website for the Department of Health and Human Services’ (HHS) Office for Civil Rights. The pictured doctor presumably represents the freedoms promised by the newest branch of the office: the Conscience and Religious Freedom Division. Beyond the division’s cheerful appearance, its creation may be one of the Trump Administration’s most consequential actions in terms of lived effects on individual citizens. Its official undertaking is “to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” In practice, that means more protection for healthcare workers who have objections to providing certain services, such as physician-assisted suicide, abortion, gender-affirming surgery, and HIV/AIDS treatment on the basis of religion and morality. Advocates argue that firing doctors for refusing to perform procedures constitutes religious discrimination, but the inherent intimacy of healthcare raises difficult questions about a possible new normal in the second year of the Trump Administration.
The underlying substantive mission of the new division is not necessarily radical. For decades, the malicious dichotomy between protecting religious freedom and protecting against discrimination has been fueled by both Democrats and Republicans. Still, the back and forth nature of “conscience clauses,” as religious exemptions are called, is much like that of the recent reinstatement of the Mexico City Policy—right-wing homages to religious conservatives in a game of political Ping-Pong. Under previous presidents, the policy restricted federal funding for NGOs that provide family planning and functioned as a global gag rule, effectively forcing organizations to actively deny abortions in order to receive much-needed funding. Although President Obama repealed it, the Mexico City Policy’s return after President Trump took office was neither unexpected nor irreversible. However, under his administration, it was extended much further than ever before, regulating all federal global health funds instead of just family planning funds.
While not as flashy as the multi-billion dollar change in the Mexico City Policy, the Conscience and Religious Freedom Division of HHS represents a similarly important change in protocol. The Bush Administration rewrote the Clinton Administration’s conscience clause regulations, and the Obama Administration rewrote the Bush Administration’s regulations. Each president having a different agenda, it is not alarming that their respective Departments of Health and Human Services would choose to enforce policies differently. Rather than rewriting the rules and enforcing the most favorable parts, the Office of Civil Rights (OCR)—now led by Heritage Foundation alum Roger Severino—established the Conscience and Religious Freedom Division. A clear break from the norm, the new creation has set off warning bells throughout Washington and the healthcare industry as healthcare professionals, patients, and lawmakers attempt to understand what this will mean.
This drastic change isn’t surprising given Severino’s track record. Coming from a family of Colombian immigrants, he is a staunch Catholic with a history of civil rights litigation. In fact, The Atlantic reported that besides his personal history of facing racial discrimination, Severino has a track record of defending victims of discrimination. However, in areas of LGBTQ rights and gender fluidity, he has been one of the loudest advocates for the religious right, working for both the DeVos and Heritage Foundations. This is particularly important within the context of healthcare, given that people identifying as LGBTQ and with marginalized gender identities are among those most at risk. In January 2016, Severino even co-authored a report titled “Proposed Obamacare Gender Identity Mandate Threatens Freedom of Conscience and the Independence of Physicians” in which he castigates President Obama’s OCR for proposing “no religious accommodation or exemption to its gender identity mandate or any other aspect of its proposed regulations.” As the director of President Trump’s OCR, he has already begun to redirect it to focus on those exact issues. In concert with the new division, Severino is spearheading a new religious outreach initiative to better incorporate the goals of religious groups into HHS policy. His goals for the office are apparently influenced by both his pre-administration policy suggestions and personal religious convictions. As Severino may lead the office to double down on religious freedom, it is unclear whether the department will protect against gender and sex-related discrimination.
Though the Conscience and Religious Freedom Division is not even a month old, it already has the potential to impact personal interactions between providers and patients. While general debates on religious freedom tend to take on a narrative of independent choice, medical care is intrinsically an interpersonal and, for the patient, vulnerable interaction with an imbalance of power. Because this is such a high-profile change, the new division gives very public approval and support for more religious exemptions, meaning more healthcare providers will likely feel empowered to refuse care based on personal convictions. The repercussions of declining to provide services or even refer a patient to a different doctor can be drastic. In one extreme case, a doctor citing religious reasons failed to recommend a life-saving abortion for a pregnant woman with an infection in her amniotic fluid. Because of that refusal, her entire uterus had to be removed in an emergency surgery. Of course, not every religious exemption leads to the same end. For example, psychologists can also refuse to counsel LGBTQ people and doctors can refuse to provide basic health services—these are the everyday distractions from health and quality of life that vulnerable populations face in conscience clauses.
The division’s establishment is also an aggressive assertion of the department’s priorities, indicating that this administration will increase its Civil Rights focus on moral exemptions, directing more time and resources to that area than to other pressing issues. President Trump’s Justice Department provides a model for what may happen. By changing regulatory interpretations of “sex,” Attorney General Sessions also changed which cases take priority and which cases are no longer prosecuted. HHS, however, has taken this process further than Justice by restructuring the department itself.
The Conscience and Religious Freedom Division is built upon decades of conflict, wherein power and policies frequently shift from one side of the aisle to the other. This newest addition to the OCR may have the same ethos as its predecessors, but coupled with such active backing by the department’s leaders and an administration with a pattern of taking extra steps toward the religious right, the Muslim doctor smiling at the center of the webpage will not be representing political unity, but rather a new level of hostility played out in the area of intimate, individual health. And on such a small scale, the Conscience and Religious Freedom Division casts a large shadow.