How Should the Law Respond When Health Care Providers' Obligations Conflict with their Religious Beliefs? Two Recent Developments That Illuminate the Issue: Part Two in a Two-Part Series

In Part One of this two-part series of columns focusing on the conflict between the religious obligations of healthcare providers and their professionally - or legally - mandated responsibilities, we discussed a recent decision by the California Supreme Court, North Coast Women's Care Medical Group v. Superior Court. We agreed with its holding, refusing to grant the defendant physicians an exemption on religious grounds from the anti-discrimination provisions of California's Unruh Civil Rights Act. However, we also sharply criticized the Court's reasoning.

We suggested that in applying strict-scrutiny review, the Court must carefully evaluate the state's interest - here, an interest in avoiding the harm caused by discrimination based on sexual orientation in the provision of medical services. We also suggested that, in the strict scrutiny analysis, the Court must thoroughly analyze whether there are alternative means available to the state to further its interest in preventing the harm caused by sexual-orientation discrimination in this context. In North Coast, the California Supreme Court neither scrutinized the state's interest, nor considered alternative means for achieving its goals. We also challenged the Court's suggestion that the operation of the Unruh Act did not substantially burden the physicians' state constitutional rights to the free exercise of their religion.

In this column, Part Two of this series, we will focus on recent regulations proposed by the federal Department of Health and Human Services (45 CFR Part 88) that are intended to protect healthcare workers from being compelled by their employers or by the force of law to violate their religious beliefs.

The Proposed New Bush Administration Regulations Concerning Healthcare Workers' Freedom of Conscience: A Comparison to Charitable Choice

The terms of the proposed HHS regulations are varied, but several core requirements can be stated briefly: Entities receiving grants, contracts or loans under specified federal statutes are prohibited from discriminating against any healthcare professional because he or she performed or assisted in - or refused to perform or assist in - an abortion or sterilization. Entities carrying on any health service program or research activity funded by HHS are prohibited from requiring any individual to perform any government-funded service or activity if doing so would be contrary to his religious beliefs or moral convictions. Entities receiving grants or contracts for biomedical or behavioral research are also prohibited from discriminating against any healthcare personnel for the failure or refusal to perform any activity that would be contrary to the researcher's religious beliefs or moral convictions.

While the proposed regulations described above raise a variety of issues, the one that is most striking to us is the stark difference between these rules and so-called charitable choice laws (and comparable executive orders in the President's Faith-Based Initiative), which allow religious organizations that receive federal grants to discriminate on the basis of religion in hiring employees to staff government-funded social service programs.

The HHS regulations say that it is unacceptable for recipients of federal subsidies to discriminate against or coerce employees who refuse to provide healthcare services based on religious convictions. If so, then why is it permissible for religious organizations receiving federal support to operate social service programs to refuse to hire qualified job applicants solely because of their faith, or to terminate employees for failing to adhere to the employer's religious practices?

If anything, one would think that there are stronger grounds for allowing employers to discriminate on the basis of religion and override religious differences in the healthcare field than exists in charitable choice programs. Accommodating the religious objections of healthcare workers risks some significant interference with medical research and the provision of health care services. Protecting employees against religious discrimination by faith-based providers operating government subsidized social service programs creates no comparable risk of disruption.

After all, if a medical facility provides specific medical services to its clients, preventing it from requiring its employees to participate in the treatment of patients scheduled to receive those services may constitute a serious burden both for the facility and its patients. Here, in the name of protecting religious liberty, the federal government may - through the HHS regulations - prevent the employer from demanding that its employees carry out some of the very duties they were hired to perform in the first place.

In the charitable choice context, however, employers are permitted to discriminate against and coerce employees because of their faith in circumstances where prospective employees are completely willing to perform all of the duties the job (which involves the provision of social services, not the inculcation of religion) requires.

Since charitable choice laws recognize that direct government funding cannot be used for religious instruction, worship or proselytizing, hiring employees of different religious backgrounds will not interfere with a religious organization's ability to provide quality social services. If the government funds a program to teach word processing and basic computer skills to individuals trying to move from welfare to work, for example, it is hard to understand why the religion of the teachers in the program should matter to the effectiveness of the instruction that beneficiaries receive.

In a family planning clinic, on the other hand, an employee's unwillingness to participate on religious grounds in medical services involving contraceptives that can be characterized as abortifacients, or involving sterilization procedures, may make a significant difference to the clinic's operations.

In brief, under the HHS regulations, employers are required to respect religious differences notwithstanding the risk that doing so may burden the provision of services and the care that clients receive. Under charitable choice provisions, in contrast, faith-based employers are not required to respect religious differences of prospective or current employees, even though doing so would not adversely impact job performance or the quality of services provided beneficiaries.

The Inconsistency Between the New HHS Regulations and the Arguments Employed to Defend Religious Discrimination in Charitable Choice

The proposed Health and Human Services regulations would also seem to run counter to two of the arguments commonly used to justify religious discrimination in charitable choice programs. First, it is often argued that by allowing religious organizations receiving federal funds to discriminate on the basis of religion in hiring staff, the government is only allowing religious entities to exercise the same discretion in hiring that has always been available to their secular organizations. Surely, the argument goes, the government cannot tell Planned Parenthood that it has to hire employees who are religiously opposed to abortion services, contraception or sterilizations.

The proposed regulations undermine that argument to the extent that they ignore the reality that some medical institutions may believe that the very medical services that other individuals object to on religious grounds are, in fact, therapeutically necessary and morally justified medical treatments. Yet these institutions are denied the ability to discriminate on the basis of their convictions in hiring staff or requiring staff to perform specific duties. Thus, the argument that allowing government-subsidized religious organizations to discriminate is simply leveling the playing field - and providing them the same autonomy that secular organizations receive - is challenged by the new HHS regulations.

Second, proponents of permitting religious discrimination in charitable choice programs argue that such discrimination is neither harmful nor problematic because it does not reflect invidious motives. Religious discrimination, they argue, operates differently than racial or ethnic discrimination. Exclusionary religious practices do not denigrate or stigmatize members of other faiths.

But that same description applies to healthcare facilities that require their staff to perform medical procedures that individual employees may oppose on religious grounds. The employer does not invidiously disparage the employee's beliefs. It simply wants to ensure that clients receive the medical services the employer provides. If the only harm caused by discrimination is the psychological injury that results from being stigmatized, employer requirements or legal mandates designed to ensure that sought-after medical treatment is provided to patients should not be understood to burden religious employees who lose job opportunities because of their faith.

The denial of employment opportunities is a coercive burden, however, whether it is accompanied by disparagement or not. Healthcare workers who find that their job options are limited if they follow the dictates of their faith understand this. So do religious individuals who are denied employment in tax-subsidized social welfare program because they hold the wrong religious beliefs.

Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.