Imagine going to a hospital. The staff discover that you have, or are at risk of, a life-threatening condition, but they don’t treat you or tell you. They send you home.
In Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act’s Nondiscrimination Mandate, Elizabeth Deutsch highlights such a scenario—a real-life case in which a hospital provided a pregnant woman with neither treatment nor information about the threat to her life posed by her nonviable pregnancy. Tamesha Means survived, but developed “a potentially deadly infection.” (If you’re interested in her case, information is available here.) Regardless of individual practitioners’ lack of religious or moral objections, many hospitals prohibit treatment that would terminate a pregnancy, even when it is unlikely to reach viability and poses a severe threat to the mother’s health. Practitioners are also prohibited from informing these women of this threat or that they may be treated by a different hospital.
The conflict of rights that we think of as protected by our Constitution is clear—religious freedom, protection from gender discrimination, bodily integrity, and even life.
The Affordable Care Act’s Role in the Conflict of Rights
The Affordable Care Act (ACA), by encouraging hospital mergers, has inadvertently contributed to a concern that Means’s case will not be uncommon. Hospitals with no previous religious affiliation have, as a result of merging with Catholic hospitals, been forced to adopt the Ethical and Religious Directives for Catholic Health Care Services. In some communities, these directives bind all nearby hospitals. Ms. Deutsch shows, however, that the ACA may provide a solution—Section 1557, the nondiscrimination provision. This provision incorporates Title IX‘s definition of sex discrimination into the ACA. Case law suggests that discrimination based on pregnancy status is sex discrimination under Title IX, and therefore under Section 1557 of the ACA.
The Role of RFRA
Even if the law classifies different treatment of pregnant women as sex discrimination, would that require Catholic hospitals to treat or at least provide information to women whose pregnancy poses a significant health risk? Alternatively, could that nondiscrimination law enable a woman to bring a claim against a hospital or other healthcare provider? Would a law prohibiting sex discrimination prevail when paired with a law that protects religious freedom?
Although the Constitution protects religious freedom, our legal system recognizes limits to that freedom. The Religious Freedom Restoration Act (RFRA) raises the hurdle that the federal government must clear to impose a substantial burden on someone’s religious freedom. If someone shows that federal action—such as a nondiscrimination provision of a federal law—imposes a substantial burden on their religious exercise, the government must show that the law survives strict scrutiny. To pass strict scrutiny, the law must be 1) the least restrictive means to 2) further a compelling government interest.
What About Hobby Lobby?
In its 2014 decision in Burwell v. Hobby Lobby, the Supreme Court held that RFRA allowed certain corporations to object to the ACA’s contraceptive mandate, despite the government’s interest in gender equality. The Court noted that, since the ACA included an alternative way for female employees to get contraceptive coverage, the burden on these women was “precisely zero.”
“Precisely zero” is hardly how one would describe the burden on patients faced with a threat to their health or life. Further, Ms. Deutsch shows that religious freedom challenges to anti-gender discrimination provisions are rarely successful. For example, courts have refused to allow religious organizations to pay women less than men or fire women who became pregnant out of wedlock. Section 1557 likely would not force hospitals to terminate a pregnancy under all circumstances, but it might be a path to requiring information, at the very least, and possibly permitting willing practitioners to provide appropriate emergency care to pregnant women.