Trump administration puts religious freedom at heart of US health policy

Critics say the new focus could reshape LGBTQ+ healthcare, abortion access and vaccine policy

The Trump administration is moving religious freedom to the forefront of its health policies, a move that will likely affect reproductive health, LGBTQ+ healthcare, and vaccine policy.

“They are very much putting religious freedom front and center,” said Dorit Reiss, a professor at UC Law San Francisco. But “it tends to privilege a conservative form of Christianity and, for example, protect discrimination against LGBTQ people.”

The US Department of Health and Human Services (HHS) said on Sunday it had reorganized its office for civil rights, bringing conscience and religious freedom to the top. And on Friday, the US Department of Justice (DOJ) issued a new report on religious liberty that includes multiple references to abortion, vaccines, and gender-affirming care.

The reorganized HHS office will require federal agencies, state and local governments, healthcare providers, health plans and others to focus on “protecting the free exercise of religion and conscience and the right to be free from coercion in HHS-conducted or funded programs”, according to the public notice.

“This suggests they will use their funding authority to pressure states and local government and private groups,” Reiss said.

Liz Sepper, a professor of law at the University of Texas at Austin, noted “this is, of course, being framed in terms of religious liberty, but it’s not really about that.” Most of the religious conscience statutes the office says it is planning to enforce are laws about refusing reproductive healthcare to patients and to beneficiaries of insurance, she said.

“I think it’s a really clear signal to the right to life movement that some of their priorities are going to be coming to the top at the agency,” Sepper continued.

The most common violation of the church amendment, one of the laws mentioned in the HHS reorganization, is discrimination against abortion providers, Sepper said. “I would guarantee that we will not see the Trump administration’s HHS go to work to stop that kind of discrimination.”

Statutes allowing hospitals and individual health providers to refuse certain kinds of healthcare could also be interpreted broadly to healthcare that has been politicized, like vaccines or gender-affirming care, Sepper said.

The DOJ report took aim at vaccine mandates, quoting anti-vaccine activists and parents who do not want their children vaccinated.

“These are not traditional things for the government to intervene with,” Reiss said. School vaccine requirements, for example, are usually set at the state level.

The Trump administration is expected to release a new rule of religious conscience. These moves are “at least preparing the administrative functions for when the rule comes out”, Sepper said.

The US supreme court in its opinion on the Emergency Medical Treatment and Labor Act (Emtala), a federal law ensuring public access to emergency services, “kind of punted” on Idaho’s abortion ban and the conflict with Emtala, suggesting that providers would have a conscience right to refuse emergency medical care under Emtala, Sepper said. “I think we could see the administration take that perspective.”

The conscience laws HHS enforces are usually focused on providers, not patients, Sepper noted.

“That really means they’re focused on the rights of a very small segment of the population, and the rights of those providers to refuse medical care come into conflict with the rights and interests of the American people to receive medical care that’s nondiscriminatory or that doesn’t impose someone else’s religion on them,” she said.

The HHS civil rights office has also downplayed areas of discrimination that were previously top priorities, like discrimination against disabled people and transgender patients.

“The question becomes: Are you dedicating lots of resources to enforcement of religious refusal laws in the place of enforcement of national origin discrimination protections, for instance, or translation services or accommodations for disability?” Sepper asked.

The Guardian has contacted HHS for comment.