The Health Care Conscience Rights Act of 2013

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by Rick Plasterer

The struggle for religious liberty and liberty of conscience, already having deeply engaged the Christian subculture experiencing the Obama Administration’s devastating HHS mandate in massive litigation involving numerous lawsuits, could most effectively be dealt with by legislation protecting liberty of conscience. This realization drives two new bills in Congress, H.R. 940 and S. 1204, which, if enacted, would become the Health Care Conscience Rights Act of 2013. Proposed in the House by Rep. Diane Black on March 4, and by Sen. Tom Coburn in the Senate on June 20, the proposed law won praise and support both from the U.S. Conference of Catholic Bishops and the Southern Baptist Ethics and Religious Liberty Commission.

America has a long history of protecting liberty of conscience. In recent history, the enactment of the Religious Freedom Restoration Act of 1993 (RFRA) required the government to show a compelling state interest applied in the least restrictive way in any law or regulation “burdening” religious liberty. This act is important for many legal challenges to the HHS mandate, since the Supreme Court interprets the constitution as providing absolute protection only to religious belief, not religious practice. But the proposed conscience legislation would prevent (and rescind existing) government regulations now being litigated that require sponsorship or purchase of health insurance that covers goods and services that facilitate abortion. In addition, it would protect health care providers from having to violate their consciences by being involved in procedures that facilitate abortion.

Liberty of conscience had consensus support in American society until the last generation. When military conscription existed, exemption existed for individual conscientious objectors, even during the most ferocious and life-threatening conflict America has ever been involved in, World War II. Yet that conscience exemption was generally accepted at the time, and even its religious basis. Subsequently the Church Amendments (named for Senator Frank Church of Idaho) of the early 1970s were the first pieces of conscience protection with respect to abortion, and prohibited the federal government from making provision of abortion a condition of federal aid to health facilities.

This has changed dramatically with the advent of the western world’s “culture war” over sex and religion. Liberty of conscience on the part of health professionals is attacked as limiting the right of patients to legal medical services that contradict traditional religious morality, and as an imposition on patients, although the desired services can generally be obtained from other providers, and the court decisions establishing the right to an abortion only make abortion legal, not an entitlement. A moment’s thought about who is being required to take action against their will shows that it is the conscientious objectors, not their clients, who are being imposing on. And very reasonably, opponents of conscience provisions in law also have in view changing beliefs by requiring people to violate their consciences, and as well as stigmatizing conscientious objectors as being socially regressive.

As the text of the House bill notes, the proposed legislation only restores the status quo ante that existed before Obamacare. In that environment, religious educational, medical, and charitable institutions, other organizations with a religious mission such as religious publishers, and businesses owned by religious proprietors were free to provide health insurance to their employees and generally the various services they provide their clientele in line with their professed religious doctrine. The proposed legislation specifies that the Patient Protection and Affordable Care Act (Obamacare) which is the basis of the HHS mandate, may not be used to compel employers (religious or not) to provide health insurance including contraceptives or abortion inducing drugs, or anyone to purchase such policies, thus reversing the HHS mandate. It also provides for a litigation option by health care providers discriminated against because they decline involvement in facilitating abortion.

The general provision for protection against facilitating contraception or abortion is very reasonable in view of the fact that not only religious institutions, but also religious individuals and business owners view their work as being most importantly a service to God. For Christians, all of life is a service to God, and at an ultimate level, a religious activity. For the Catholic Church in particular, organized charitable activity is part of the practice of the Catholic religion, and it cannot be done except in line with Catholic faith and morals. But whatever particular Christian theology one holds, life in obedience to God is an absolute which we may for no reason decline. Nor is this an uncommon religious commitment. By requiring religious organizations and individual owners of businesses to violate their consciences, the state is essentially imposing its own values, and evidently endeavoring to destroy the Christian subculture that still opposes the sexual revolution by literally making their opposition illegal.

What is being done to threaten religious liberty in the area of health care will also be attempted across business and the professions. As is already apparent in numerous cases, any action that contradicts what the proponents of the sexual revolution have come to understand as “sexual liberty” will become impermissible, whether by health professionals, teachers, or merchants of various goods and services. Government defined “health” will become the new morality. The effect will be to drive faithful Christians from these occupations, depriving society of much talent and service. Is “irrational religious dogma” to blame? Is it not rather a vision of life social liberals want imposed on all of society?

It may be observed that the prospect for passage for the proposed legislation is not high, especially as it must be signed by the President or muster a two third majority in both houses of Congress. But in the current life and death struggle over religious liberty, the attempt should certainly be made, in addition to the ongoing litigation against the HHS mandate citing the Constitution and the Religious Freedom Restoration Act (RFRA). And in the event of a negative final outcome both in Congress and the courts, faithful Christians must be as good as their word, and at great personal cost to themselves and others, obey God rather than men, depriving the new secularist society of their services.