Illinois Ordered A Doctor To Tell Women Where To Get Abortions. Now He Wants The Whole State To Suffer

21 days ago

James Gallant, a retired emergency physician who serves pro bono as the medical director of the Hope Life Center in Sterling, Illinois, a crisis pregnancy centre, doesn’t offer abortions, and doesn’t want to tell women who visit his facility that they can get them elsewhere. Doing so — which is required under a 2016 state law — would violate Gallant’s religion freedom, he says. Earlier this month the Thomas More Society, a pro-life nonprofit law firm, filed a federal objection on his behalf with President Donald Trump’s Department of Health and Human Service. In the complaint, the firm claims this requirement flies in the face of federal statutes that exempt health care providers from participating in abortions if they claim a religious objection.

But far more than Gallant’s conscience could be at stake. He maintains that federal funding for health and safety net programs for Illinois residents is contingent on the protection of his wall-to-wall conscience rights. Although they have never been applied so broadly, federal conscience protection laws may allow for this revolutionary application, according to legal expert — and it’s up to a bevy of sympathetic bureaucrats Trump has installed at HHS to decide. If Gallant predominates, Illinois could lose federal funding for a whole scope of social welfare services, from Medicare and Medicaid to food stamps, welfare, and Head Start — all because one man didn’t want to tell girls where they can obtain abortions.

Gallant’s argument is novel. A state’s federal funding for essential health care programs has never been withheld under these laws. Past complaints have simply resulted in narrow settlements exempting the complainants from having to provide whatever services they object to. But Gallant’s complaint asserts that he “cannot, in conscience, ” even refer women to providers of abortion procedures.( A spokesman for the Thomas More Society did not respond to interview requests .)

Gallant’s is just one of a rush of similar complaints HHS has received since Trump’s election. Under President Obama, the department received only a handful of complaints quoting federal conscience protection statutes. These statutes include the 1973 Church Amendment, which requires federally money health care facilities to permit providers to opt out of participating in abortion, sterilization or other procedures to which they have religion or moral objections; the 1996 Coats-Snow Amendment, which widens those protections to medical students and residents; and the 2004 Weldon Amendment, which extends these conscience exemptions related to abortion to a broader range of “health care entities.” Obama’s HHS infuriated conservative lawmakers and activists because — they maintained — it was slow to act on those complaints, or closed investigations without finding violations.

But the complaint procedure, managed by HHS’ Office for Civil Rights, is now controlled by Trump political appointees who want to more vigorously enforce conscience protection laws, and who are actively attempting more objections. A year ago, Gallant’s complaint would have been a non-starter; now it will receive a sympathetic, if not enthusiastic, hearing.

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Acting Secretary Eric Hargan speaks at a press conference announcing a new division on Conscience and Religious Freedom at the Department of Health and Human Services January 18, 2018 in Washington, DC. The new division, part of the department’s Office of Civil right, will aide medical professionals who object to certain procedures on religious grounds.

How we got here

The Illinois law Gallant objects to is an amendment to the Health Care Right of Conscience Act, a 1998 statute that exempts health care providers in the country from having to perform abortions or other reproductive health procedures they say violate their consciences. But the law produced some unintended repercussions. Some Catholic hospitals refused to provide care to women who were miscarrying even when the patient’s health was at risk and the fetus would not survive. The Illinois legislature, under a Democratic majority, passed the referral requirement in 2016 to protect patients’ timely access to care.

Lorie Chaiten, director of the Reproductive Rights Project at the ACLU of Illinois, called the amendment a big step forward for Illinois women; no longer would they “need to worry that they are being denied medical information based on their health care provider’s religious beliefs.” Under the amended law, objectors like Gallant may still opt out from performing procedures they morally object to; they are simply required to refer the patient to another facility.

Anti-abortion medical doctors, crisis pregnancy centres, and Christian right advocacy groups swiftly condemned the amendment as a fresh attempt to discriminate against them for their religious beliefs. Within days, Alliance Defending Freedom — the legal powerhouse that recently argued Masterpiece Cakeshop v. Colorado Civil Rights Commission before the Supreme Court — filed suit against the amendment, arguing it transgressed the constitutional rights of doctors and crisis pregnancy centres. In July 2017, both nation and federal tribunals entered preliminary injunctions, barring the nation, for now, from enforcing the law.

Now Gallant, and other like-minded physicians, have extended this challenge to HHS — hoping to put much of the federal funding for their nations at risk.

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Department Of Health and Human Services, Hubert H. Humphrey Building.

Stacking the deck

At HHS, the Office for Civil right is charged with enforcing anti-discrimination statutes, health privacy statutes, and conscience statutes, and protecting access to health care for vulnerable groups. Over the past year, Trump has stacked that office with a legion of anti-abortion rights activists who share the belief that the conscience rights of conservative Christians are under siege by laws protecting access to health care for women and trans people — and that conscience protections should become an OCR priority.

Christian rights activists are still seething over their frustration with how Obama’s OCR managed such complaints. During the final Obama years, the head of the office was Jocelyn Samuels, a seasoned civil right lawyer who had come from the Civil right Division at the Department of Justice. She was running the show when three grievances arrived from a group of California churches and other Christian institutions, charging that the State of California had infringed the Weldon Amendment when it reminded insurance companies of their obligation under California law to cover abortion procedures. One of the complaints was brought by Casey Mattox and Matthew Bowman, then both lawyers at Alliance Defending Freedom( ADF ), together with an attorney from the Life Legal Defense Foundation.

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Acting Assistant Attorney General for the Civil right Division Jocelyn Samuels speaks during a press conference.

Because the health insurers themselves had no objection to offering the coverage, Samuels discovered no Weldon violation, and closed the investigation in June 2016.

It was a call to the barricades. Mattox accused the Obama administration of “making a mockery of the law” and vowed that ADF would “continue to defend churches from this clear violation of the First Amendment and federal statute and call on Congress to hold HHS accountable.”

Bowman, Mattox’s co-counsel on the lawsuit, is now deputy general counsel at HHS, where part of his chore is providing legal advice to OCR.

At the helm of Trump’s OCR is Roger Severino, who previously operated the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation. At Heritage, Severino wrote frequently in defense of conscience clauses and specifically derided actions taken by Obama’s OCR. He also attacked an Obama-era regulation that protects transgender people from discrimination in health care as a threat to religion conscience. Enforcement of that regulation is now his responsibility at OCR.

After Severino was named to the post in March, 12 Democratic senators, led by Washington’s Patty Murray, wrote to then-HHS Secretary Tom Price, saying they were “deeply troubled” about the decision, citing Severino’s “long history of constructing bigoted statements toward lesbian, lesbian, bisexual, and transgender people and attacking women’s access to health care services and reproductive rights.” They charged Severino’s “past statements, pennings, and affiliations induce him unqualified to lead an office whose purpose is to ensure that’ people have equal access and opportunities to participate in certain health care and human services programs without unlawful discrimination.’”

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HHS Office of Civil Rights Director Roger Severino speaks at a news conference announcing a new division on Conscience and Religious Freedom at the Department of Health and Human Service.

But Christian right activists find Severino’s history as an asset. In their view, the Obama administration had a distorted approach to combating discrimination, focused on protecting women’s reproductive selections and health care access for trans people. Severino now had an opportunity to focus OCR enforcement on what they assured as the real menace: efforts to curtail the religion freedom of health care providers.

When Severino was appointed, Matthew Franck of the Witherspoon Institute, a conservative think tank, told the Catholic News Agency that Severino, “a seasoned champ of religion liberty and the pro-life cause, ” was “just the right person to correct the course of HHS’s efforts at enforcing anti-discrimination principles in federal law.” Franck conveyed optimism that Severino would restore OCR’s “true mission.”

Bowman has also shown himself to be a dedicated supporter of more vigorous conscience protections. At a panel discussion at the Catholic Information Center just days before the 2016 election, for example, Bowman accused Obama’s OCR of seeking to turn every health care facility in the United States into an abortion clinic. “This is a serious issue about whether health professional, whether health care facilities, will be able to practice medicine consistent with their beliefs, ” he said. Under “the view, apparently, of the HHS OCR, all women who are pregnant will have to have their babies delivered at abortion clinics. Because there will only be abortion clinics because all Catholic hospitals will be abortion clinics, everyone has to do abortions.”

Once installed, Severino hired staff members of resulting Christian rights organisations with track records advocating for religious protections for people who oppose abortion and LGBTQ rights. For joint chiefs of staff, he hired March Bell, whose previous appointments included serving as personnel director and chief advise for the Select Investigative Panel on Infant Lives, an investigative committee House Republican launched in 2015 in the wake of the release of deceptive Schemed Parenthood videos by the Center for Medical Progress. The committee’s objective, in the words of its chair, Marsha Blackburn, was to guarantee that “not one cent of taxpayer money” goes to “big abortion businesses.” Severino brought on Justin Butterfield as a senior adviser; Butterfield had been senior counsel at First Liberty Institute, an anti-LGBTQ law firm based in Texas who helped prepare a report last fall, is available to President Trump, Vice President Mike Pence and members of Congress, that claimed to document 1,400 religion liberty violations over the past year.

Severino has brought on other conservative activists on a contract basis, including Mandi Ancalle, a veteran activist with a detailed understanding of the Christian right’s wish list for the Trump administration. Ancalle, who ran from being general counsel for government affairs at the Family Research Council to being a contract policy advisor at OCR, told the Values Voters Summit in September 2016 that she was “working to generate a comprehensive list” of policy priorities for a potential Trump administration that included resuscitating a Bush-era conscience rule, repealed by Obama, that exempted health care workers from treating girls, LGBTQ people or others based on religious objections. At the summit, Ancalle reiterated the Christian right’s opposition to Obama-era regulations protecting transgender patients from discrimination in health care, according to a report on the collect by People for the American Way, a progressive advocacy organization.

The hiring blitz is still underway. OCR is currently attempting an lawyer advisor to work on matters concerning “free exercise of religion, conscience protections, and protections against certain specific types of coercion or religious discrimination.” HHS did not respond to a request for commentary about OCR hiring.

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“Open for business” for the Christian right

The social conservatives Trump hired at HHS’ civil rights office have moved quickly to transform the organization. On Jan. 18, Severino announced the creation of a new Conscience and Religious Freedom Division at OCR. In statements in the department’s Great Hall to an audience of some 150 HHS staffers and selected guests, Severino took aim at his predecessors and promised an entirely new political culture in the agency.

HHS, Severino told the appreciative audience, “has not always been the best keeper” of religion liberty. But “times are changing, ” he said, at the agency and beyond. “We’re institutionalizing a altered in the culture of government, beginning with HHS, to never be borne in mind that religious liberty is primary freedom, that it is a civil right that deserves complete enforcement and respect.” And he touted how the new division will expand the office’s enforcement of federal statutes — especially the Church and Weldon amendments invoked in Gallant’s complaint.

During the entirety of the Obama years, Severino added, the office received only 10 complaints of conscience violations. But since Trump’s election, he said, OCR has received 34. Among them are two complaints ADF filed last September, one on behalf of doctors like Gallant at crisis pregnancy centers in Illinois, as well as another on behalf of a crisis pregnancy center in Hawaii over a similar law. Both served as models for Gallant’s complaint, piloting the claim that the states were putting their federal fund in jeopardy by adding patient protections to conscience statutes.( ADF did not respond to an interview petition .)

The flood of complaints appears to be part of a concerted great efforts to take advantage of Severino’s tenure at OCR: On Jan. 9, the Family Research Council, their own nationals Christian rights advocacy group, put under an action alert to its adherents, urging them to file their own grievances with OCR.

“For eight years, former President Obama’s administration turned a blind eye to these injustices, despite numerous federal statutes protecting pro-life conscience rights, ” wrote David Christensen, the organization’s vice president for governmental affairs. “To stop these injustices, President Trump’s administration requires pro-life Americans who have been immediately harmed to file a complaint with the Department of Health and Human Services’( HHS) Office of Civil Rights( OCR ). ” The email then offered a tutorial on how to file a complaint.

The word is out that the Trump-era OCR is “open for business, ” Severino bragged on Jan. 18. He said he was launching the new division because of a “rise of complaints on religious freedom and conscience, ” as if the uptick had been spontaneous, and then proclaimed the urgent need for “an institutional force” “to deal with them, and to vindicate peoples’ rights when they have been violated.”

Last week, HHS published a federal notice officially establishing the new division and made public its proposed regulations. The notice describes sweeping powers, beyond the scope of Weldon, Church, and Coats-Snow, to conduct “nationwide enforcements” and to provide “conscience and religious freedom technical assistance” to everyone from federal staff to health care providers, religion organizations , nonprofits, and nation and local governments.

The proposed rules appear to be “a direct attack on women and LGBT health, ” said Susan Berke Fogel, director of reproductive health at the National Health Law Program, a health care advocacy group. Under these proposals, she said, “it appears that everyone can refuse to do anything remotely related to health care. If these regulations are adopted, the result will be severe interruption in the orderly delivery of health care services, and tremendous damage to people’s lives, dignity, and health.”

Illinois and other countries whose funding could be at stake can take some comfort in the fact that OCR isn’t the final arbiter of these complaints. Even if Gallant and the others were to persist in that office, their cases is very likely to be litigated in tribunal, Fogel said. But social conservatives are engaged in a pincer move: If a plaintiff like Gallant persists in court, Fogel said, that could have a “chilling effect” on states that hold laws like Illinois’ that protect access to reproductive health care. If a plaintiff like Gallant loses in court, supporters of conscience exemptions would likely use that as evidence that Church and Weldon are insufficient and that Congress needs to pass a more vigorous statute. “I don’t think there is any question that this is politically motivated to push the Congress” to expand federal conscience protections, Fogel said.

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Speaker of the House Paul Ryan.

House Speaker Paul Ryan has lent his support to one such bill, the Conscience Protection Act, which was introduced in 2016 and reintroduced last year. The measure would dedicate health care providers like Gallant the right to sue for damages, including from a governmental entity, in tribunal. The bill is seen by its supporters as a more robust redres than the present options: filing a complaint at OCR or trying a court injunction. It also sets Christians’ grievances on par with those of protection of class, who can already sue over discrimination for damages and attorneys’ fees.

But rather than protect citizens’ freedom of religion, civil rights attorneys argue that Severino’s new division could herald a reversal in civil right gains. The new division appears to be designed “to prioritize defending the rights of health care professionals to deny care” rather than “focusing on the goals of the civil rights laws to expand access to health coverage and to eliminate barriers for vulnerable people, communities that have been subjected to discrimination over period, ” Samuels, Severino’s predecessor, said in an interview.

Yet Severino and his allies portray themselves as the true civil rights heroes. At the Jan. 18 rollout, which took place just days after Martin Luther King, Jr ., Day, Severino and others invoked King’s legacy to support their claim that people who resist abortion or LGBTQ rights on religious grounds are the real victims of discrimination. Rep. Kevin McCarthy( R-Ca .) one of three Republican lawmakers in attendance, accused the Obama administration of engaging in a “silent refusal to defend our rights” and praised Severino’s new division.

HHS is finally “treating people somewhat and with justice, ” McCarthy said. “What a difference one year makes.”

This article was reported in partnership with The Investigative Fund at The Nation Institute .

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