In depth analysis from Erin Mulvaney and Madison Alder writing for Bloomberg explores the confusing and contradictory situation facing employers under the new Conscience Rule—even those who support the rule’s religious freedom protections.
Religious protections bolstered under a new Trump administration rule create a pathway to deny health care treatment to LGBT individuals, restrict abortion rights, and avoid providing vaccinations, prompting concern that employers in the health care industry are now in an untenable and risky position.
The so-called conscience rule, issued by the Department of Health and Human Services, allows health workers and hospitals to deny medical treatment based on religious beliefs. Supporters of the Trump administration’s rule say it simply closes holes in existing federal law and provides more certainty for employers.
Employment attorneys warn the rule could apply to more workers than the protection intended, and it fails to strike a balance between health access and religious rights. Unlike existing federal civil rights protections for religion, the rule doesn’t allow an employer to argue a hardship in granting accommodations to workers. Under the regulation, employers would be liable despite any harm to its business practices, which they can argue in workplace religious accommodation and discrimination cases in court.
Already there have been several legal challenges to the rule, which specifically offers protections for health care workers asked to perform abortions and abortion education, assisted suicide and counseling, and vaccines, among other things.
These lawsuits crystallize the tension for employers surrounding the latest example of the administration’s push for religious protections. Employers, as well as advocates, fear the impact extends beyond the courts and existing federal civil rights laws, creating a perilous environment for companies, especially those providing medical services. It fits into a larger push by the administration to allow religious rights to hold precedence over other categories protected by civil rights laws.
“I think at the broadest level, this rule is the latest effort by the Trump administration to promote a distorted view of religious liberty that gives broad license to discriminate and harm others,” said Daniel Mach, director of the ACLU program on freedom of religion and belief. “It’s a steady and growing problem. It’s turning the fundamental right to religious freedom on its head.”