Religious Health Providers Deserve Legal Protection, Not False Charges of Discrimination
COMMENTARY: Religious hospitals serve the public, and promote the public good, but they should not be expected to sacrifice or compromise their character, their mission, or their foundation.
Hospitals, as we know them today, began as religious ministries. And, in many cases, they still are.
Faith-based hospitals are more than garden-variety nonprofits; they are more than players in the “health care industry.” They are institutions animated by a deep sense of mission and inspired by the call to love and care for our neighbors.
It is true that religiously affiliated hospitals — like schools and colleges, adoption and refugee resettlement agencies, food banks and homeless shelters — do many things that governments now also do. But they did them first, and often do them better.
As the Gospel of Matthew puts it, they clothe the naked, heal the sick, and visit the imprisoned. They have been doing so for centuries — not because of policy, but because of faith.
Some argue that faith-based hospitals are simply government licensees — doing the government’s work, on the government’s terms, with the government’s permission. This argument is wrong. Religious hospitals serve the public, and promote the public good, but they should not be expected to sacrifice or compromise their character, their mission, or their foundation. Both the Constitution, and common sense, support their freedom to operate with integrity.
In recent years, some legislators, government officials, and activists have contended that, in order to fight invidious discrimination, faith-based health-care providers should be required to act in ways that contradict their foundational commitments. To mention just one example, the Biden administration recently announced that it would reverse earlier policies that protected the conscience rights of religious hospitals. Similar efforts are underfoot in a variety of contexts and jurisdictions.
These moves are mistakes. It is not “discrimination” to provide health care in a way that is consistent with a faith-based hospital’s understanding of human dignity. The Sierra Club should not be required to support damming a river or drilling for oil in a national park, and a Catholic hospital should not be expected, let alone required, to provide or participate in elective abortions, euthanasia, or sex-reassignment procedures.
Faith-based providers do not seek to turn people away; they seek, instead, the freedom to fulfill their caring mission consistently with their character.
In the past few months, state legislatures in Arkansas, Kentucky, Montana, South Carolina, and Texas have considered important conscience-and-character-protecting bills, which would protect the ability, and the right, of faith-based hospitals and health-care professionals to live out their caring vocation in a way that is consistent with their religious and conscience commitments.
Unfortunately, critics have inaccurately, and disingenuously, complained that conscience-protecting laws aim at allowing religious hospitals to turn away patients because of their sexual orientation, gender identity or other characteristics. Although these complaints are unfounded, they have contributed to the stalling of all but one of these bills — only Arkansas has been successful in passing its bill. While the mischaracterizations abound, in reality these measures simply protect religious institutions and practitioners from being forced to engage in particular actions that they understand to be immoral.
When we think about the freedom of religion, we often focus only on the individual, and on particular persons who are being coerced by government officials to speak, act, or pray in a way that violates those persons’ religious conscience. Such cases are crucially important, of course, and there are countless examples of heroic persons who have stood up to political power and official edicts, often at great cost.
It is also the case, though, as the late Justice William Brennan observed, that “for many individuals, religious activity derives meaning in large measure from participation in a larger religious community.”
“Such a community,” he added, “represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.”
Brennan was right, and we should keep this in mind when thinking about the regulation, and the protection, of faith-based healthcare providers. A religiously affiliated hospital might look like a complicated, modern business — and it probably is! — but it is also a community of care, that is entitled to be true to its faith-based mission, character, and ethos.
It is a fact of present-day life that there are deep disagreements and differences over things that matter, including medical procedures and practices. The appropriate response, in a free society, to this fact, is not state-imposed homogeneity, or false charges of discrimination, but pluralism. Our country needs faith-based hospitals, and millions of low-income people depend on them. It should not be a condition of providing care that such hospitals abandon what inspired their formation and informs their operation. Similarly, religious schools, colleges, and social-welfare efforts may, and should, do their good works in a way that is consistent with their missions.
Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law and director of the Program on Church, State & Society at the University of Notre Dame.
This is the latest in a series of articles from the Religious Freedom Institute.