By: Delaney Hermenau
The First Amendment protects the free exercise of religion, but what happens when religious beliefs come in conflict with laws that prohibit discrimination? In 1993, Congress addressed this question by passing the Religious Freedom Restoration Act (“RFRA”), which created a two-prong balancing test to determine when the government may “substantially burden” a person’s exercise of religion.[1] Under the RFRA, state and federal governments can create laws that substantially burden the individual exercise of religion if the law furthers a compelling government interest and uses the least restrictive means of furthering that interest.[2] This Act necessitated a “ministerial exception,” integrated by the Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, which precluded the application of civil rights and employment discrimination laws to religious institutions and their employees.[3] Since then, this exception has been expanded and now covers several types of businesses and institutions.[4] Religious exemptions, particularly when related to healthcare, inherently disfavor women and members of the LGBTQ+ community because they allow individuals and institutions to disregard anti-discrimination laws and permit medical practitioners to restrict medical care unjustly.[5]
Religious exemptions inherently create inequality among sexes and genders, especially when applied in healthcare. Religious exemptions permit healthcare providers and other individuals and businesses to refuse to provide services that violate their religious or moral beliefs.[6] These exemptions came quickly in response to Roe v. Wade.[7] A few months after the decision in Roe, Congress passed 42 U.S.C. § 300a-7, which provided that healthcare institutions and providers receiving federal funds could not be required to perform abortions if it was against the institution’s or individual’s religious beliefs.[8] It appears that the rights Roe guaranteed were only very briefly, if ever, fully available.[9]
Religious exemptions also allow healthcare providers to deny care by permitting religiously affiliated healthcare institutions to deny transgender individuals access to transition-related treatments, such as gender-affirming surgeries and hormone treatments.[10] The Affordable Care Act (“ACA”) prohibits discrimination on the basis of sex in federally funded health programs, and in 2016 the Department of Health and Human Services (“HHS”) stated that the ban on sex discrimination included discrimination based on gender identity.[11] In Minton v. Dignity Health, Evan Minton, a transgender man, was scheduled to receive a hysterectomy as part of his gender transition.[12] When the hospital learned that Minton was transgender, it immediately canceled the appointment.[13] The case is currently on the Supreme Court docket, pending oral arguments[14]. A holding in favor of the hospital would only further expand healthcare institutions and providers’ ability to use religious exemptions to restrict healthcare access unjustly. These exemptions allow institutions and individuals to arbitrarily hold a “religious conviction” and, in doing so, essentially disregard anti-discrimination laws.[15]
Religious exemptions also allow employers to restrict their employees’ access to healthcare. Burwell v. Hobby Lobby Stores, Inc. is a flagship case where a religious exemption clearly negatively impacted women.[16] Hobby Lobby refused to offer contraceptive coverage to its female employees, which was in direct violation of the contraceptive mandate of the Patient Protection and the ACA.[17] The ACA required that employers with fifty or more full-time employees offer health insurance providing minimum essential coverage, including contraceptive methods and sterilization procedures.[18] The Supreme Court provided that private businesses can be exempt from laws that “substantially burden their owners’ religious beliefs.”[19] The Court opined that businesses are within the RFRA’s definition of “persons” that could exercise religion and therefore they could object to the contraceptive mandate based on religious convictions.[20]
“These and other laws permitting and protecting healthcare providers who refuse to provide health services due to religious beliefs or moral convictions will continue to affect LGBTQ+ people and women disproportionately.”[21] As it has been made clear through the steady stream of challenges and litigation, religious exemptions center around various gender rights, none of which seem to impact cisgender males negatively. When the rights to free exercise of religion and equal protection come into conflict, there needs to be more focus on maintaining equal and sufficient rights in both areas. This goal could be accomplished by providing incentives to individuals or institutions that offer non-discriminatory care. It could also mean formulating a tighter definition of what constitutes “religious and moral convictions” that allow providers and employers to discriminate against a large portion of the population,[22] particularly groups already so heavily disadvantaged in other areas, including income and employment discrimination, legal barriers to family equality, and increased marginalization of the youth population.[23]
[1] See Religious Freedom Restoration Act, H.R. 1308, 103rd Cong. (1993).
[2] See id.
[3] See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012) (holding that the ministerial exception was established to prevent state interference with both the governance of churches and the hiring and firing decisions made for religious reasons).
[4] See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 735-36 (2014) (allowing for-profit companies to deny coverage of contraception); see also Minton v. Dignity Health, 252 Cal. Rptr. 3d 616, 624 (Cal. Ct. App 2019) (allowing a hospital to refuse services based on the patient’s status as a transgender male).
[5] See e.g., 42 U.S.C. § 18116 (“… an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964… be excluded from participation in, be denied the benefits of, or be subjected to discrimination…”).
[6] See e.g., Hobby Lobby Stores 573 U.S. at 735-36 (holding a business cannot be compelled to provide health insurance for its employees that covers contraception if against the businesses religious or moral beliefs).
[7] See Alexandra Brown, Religious Exemptions, 22 Geo. J. Gender & L. 335, 356-357 (2021) (describing the string of exceptions that quickly followed the decision in Roe v. Wade); Roe v. Wade, 410 U.S. 113 (1973) (holding that the fundamental right to privacy within the Due Process Clause of the Fourteenth Amendment protects a woman’s choice whether to have an abortion).
[8] See 42 U.S.C. § 300a-7.
[9] See June Medical Services v. Russo, 140 S.Ct. 2103, 2103 (2020) (requiring any physician who performed an abortion to have admitting privileges at a hospital located not further than thirty miles from the location of the abortion); see also H.B. 481, 2019 Leg., Reg. Sess. (Ga. 2019) (attempting to ban abortions after six weeks); see also S.B. 8, 2021 Leg., 87th Sess. (Tx. 2021) (attempting to restrict abortions after six-weeks through a private cause of action against an individual aiding in the facilitation of an abortion).
[10] See Brown, supra note 7, at 357 (showing that eighteen states allow healthcare providers to refuse gender-affirming surgeries and hormone treatments for transgender individuals).
[11] See Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375, 31,388 (May 18, 2016) (codifying the nondiscrimination provision of the ACA).
[12] See Minton v. Dignity Health, 252 Cal. Rptr. 3d 616, 619 (Cal. Ct. App 2019).
[13] See id. (explaining that the president of the hospital told the doctor that he would “never be allowed to perform a hysterectomy on Minton at Mercy” because it was scheduled for gender-confirmation and not a different medical diagnosis).
[14] See Minton v. Dignity Health, 252 Cal. Rptr. 3d 616, 619 (Cal. Ct. App 2019), cert. granted, No. 19-1135 (U.S. March 17, 2020).
[15] See 42 U.S.C. § 300a-7 (creating an exception based on a standard of “…contrary to his religious or moral convictions”).
[16] See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 735-36 (2014) (allowing a for-profit company to deny its employees’ health coverage of contraception to which the employees would otherwise be entitled).
[17] See id. at 701 (explaining the company’s policy to not cover contraception stems from the owner’s personal religious objections).
[18] 42 U.S.C. §400gg-13(a)(4).
[19] Id. at 689-90.
[20] See Hobby Lobby Stores, 573 U.S. at 707-08 (finding that there was no Congressional intent to exclude businesses as a category of “person” as is used in the law).
[21] Brown, supra note 7 at 361.
[22] See Jeffrey M. Jones, LGBT Identification Rises to 5.6% in Latest U.S. Estimate, Gallup, https://news.gallup.com/poll/329708/lgbt-identification-rises-latest-estimate.aspx (Feb. 24, 2021) (stating 5.6 percent of U.S. adults identify as LGBT); see also Quick Facts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/LFE046219 (last visited Oct. 17, 2021) (indicating females make up 50.8% of the U.S. population).
[23] See Lesbian, Gay, Bisexual and Transgender Persons & Socioeconomic Status, Am. Psych. Ass’n, https://www.apa.org/pi/ses/resources/publications/lgbt (last visited Jan. 25, 2022).