On Jan. 18, 2018, the Dept. of Health and Human Services (HHS) announced that its Office for Civil Rights would have a new "Conscience and Religious Freedom Division." The idea of a need to protect "religious freedom" has been around for a while. Outwardly, it is based on the concern that a religious person might be forced to do something that violates their conscience or religious belief. Political scientist Andrew Lewis said recently:
"Federal religious freedom laws gained some steam in the mid-1990s, and a decent number of conservatives were involved in them, but there was very little public awareness that they were going on.
It’s not until you see the legalization of same-sex marriage that you see this real drive to protect religious freedom. The day that the Obergefell case was decided...They knew that they were losing this cultural battle and this was a way to preserve what they thought was their orthodox faith in action."
During the 1990s and 2000s while same-sex marriage was debated nationally, many people claimed to oppose legalizing it on the premise that clergy should not be forced to perform same-sex weddings. This threat was never real, since clergy have always been free to refuse to marry people (divorcees and interfaith couples) and to impose religious requirements on the couple before and during the wedding. Since same-sex marriage was legalized nationwide, no clergy have been forced to perform one. The obviousness of the non-threat did not stop it from seizing people's imaginations. Having lost the same-sex marriage battle, Christian conservatives now aim for "religious freedom" laws to ensure that religious people are not forced to do...well, anything that they claim offends their beliefs.
For now, the new HHS division does not directly create or change laws (though it might encourage them). It is supposed to enforce whatever federal laws exist. Its activities will depend in part on what federal laws are created or struck down and what complaints are filed. Its new website does not contain a comprehensive list of all possibly relevant laws, so it is hard to predict what will happen.
The agency is already being selective about how it promotes what it does. Its website talks a bit about abortion and euthanasia and the nondiscrimination provisions in the Affordable Care Act that relate to them, but it doesn't mention the ACA’s Section 1557 which forbids discrimination based on markers including “pregnancy, gender identity, and sex stereotyping" and whose enforcement has been in question since Trump’s election. Its website doesn't mention transgender people at all, but this is one of the points at issue in the public consciousness. If that part of the ACA is repealed, the new Conscience and Religious Freedom Division will have responsibility for enforcing the right of healthcare workers to discriminate against people based on pregnancy and gender.
Drilling down through the website’s complaint process reveals a list of a wide range of relevant employment situations including agencies for adoption, foster care, and social services; mental health centers; drug rehabs; homeless shelters; nursing homes; researchers; insurance companies; and pharmacies. This suggests that religious people anticipate wanting to reserve the right to deny service based on a client’s identity or behavior, not just on specific procedures.
Someone might want the birth control pill or the "Plan B" pill to interrupt a possible pregnancy. Someone might want pre- or post-exposure prophylaxis for HIV. It would be good if one's pharmacist would dispense it. The pharmacist's prerogative to make judgments about others does not seem to outweigh the client's prerogative to make choices about their own life. That doesn't seem to be a good definition of political freedom.
If a cosmetic implant ruptures it would be nice to think that one could just get it taken out without starting a debate about whether the patient is really a woman, whether it's really an emergency and exactly how many hours are estimated to remain to allow a different healthcare staff to be recruited,, whether repairing it counts as a sex-reassignment surgery as opposed to only removing it and sending her elsewhere to get it fixed. What kind of moral calculus is that, and what is the benefit? It is much simpler to accept that this is a person who needs the same kind of treatment as anyone else with that problem. But the insistence on so-called "religious freedom" is the endorsement of just that kind of presumptuous, time-wasting, anxiety-provoking, us/them polarizing moral calculus, and there is now a federal agency to attempt to culturally legitimize it.
The scope of the types of discriminations allowable under "religious freedom" is likely to increase. State laws branded under the same “religious freedom” concept are not all healthcare-specific. Some apply more broadly to general business dealings. So, even though this new federal agency may not have the mission of enforcing state law, we should pay attention to how the idea of "religious freedom" is variously interpreted and what versions politically succeed.