Religious Liberty for a Select Few

Apr 4, 2018

By Sharita Gruberg, Frank J. Bewkes, Elizabeth Platt, Katherine Franke, and Claire Markham

Introduction and summary

In its first year, the Trump administration has systematically redefined and expanded the right to religious exemptions, creating broad carve-outs to a host of vital health, labor, and anti-discrimination protections. On May 4, 2017—the National Day of Prayer—during a ceremony outside the White House, President Donald Trump signed an executive order on “Promoting Free Speech and Religious Liberty.” At the time, the executive order was reported to be a “major triumph” for Vice President Mike Pence, who, as governor of Indiana, famously signed a religious exemption law that would have opened the door to anti-LGBTQ discrimination.1 Among its other directives, the order instructed Attorney General Jeff Sessions to “issue guidance interpreting religious liberty protections in Federal law.”2 The guidance on “Federal Law Protections for Religious Liberty,” which Sessions subsequently issued in October 2017, purports to clarify existing religious liberty protections.3 However, in practice, it expands those provisions to improperly elevate the right to religious exemptions above other legal and constitutional rights and to shield those who would seek to use federal dollars while denying necessary services to and discriminating against LGBTQ people, women, and religious minorities.

Federal agencies are already relying on Sessions’ guidance to broaden exemptions related to essential health services, including sexual and reproductive health care. In January 2018, the Department of Health and Human Services (HHS) announced the creation of a Conscience and Religious Freedom Division in the Office for Civil Rights as well as the publication of a proposed rule that would radically redefine and expand existing religious exemptions under the law. Among its other provisions, the rule would expand the right of health care providers to deny patients necessary care related to abortion and sterilization.4 In October 2017, HHS published a rule allowing virtually any employer that objects to contraception on moral or religious grounds to apply for an exemption to the Affordable Care Act’s mandate that employers provide contraceptive coverage in their health insurance plans.5 Both measures referenced Sessions’ October 2017 guidance as part of the department’s rationale for promulgating these rules.

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