Amicus Brief Challenging Excessively-Broad Religious Exemptions for Health Care Employees

Reconstructing Judaism joined an amicus brief submitted by the ADL and Americans United for Separation of Church and State to challenge the Conscience Rights in Health Care Rule issued by the U.S. Department of Health and Human Services in 2018. 

As applied to reproductive healthcare, the HHS Rule improperly favors those who oppose abortion by broadly granting them a near-absolute right to refuse to perform any services which have any “articulable connection” to the procedure. These services could range from actual medical procedures to talking to patients, filling out paperwork, or cleaning or making ready facilities necessary to perform safe abortions.  Not only are the rights to refuse broad, the Rule further prohibits healthcare providers from limiting the scope of an accommodation in reasonable consideration of the availability of alternate staff, the willingness of a doctor to perform the procedure, or even the safety and life of the patient in emergency situations.  In short, under this Rule, HHS has created a virtual “veto power” over abortion services that can be exercised by religious objectors to abortion – ignoring the beliefs and needs of the patient, physician, or provider.  The overly broad religious exemption created by the Rule thus violates the Establishment Clause because it harms third parties, as well as constitutes a preference for one specific religious viewpoint above all others. 

While we support reasonable religious accommodations for doctors and other health care providers, the Rule provides disturbingly expansive religious exemptions in the health care industry. Reconstructing Judaism believes in the importance of the separation of church and state to ensure religious freedom, equal rights and equal dignity for all. We further believe that the reproductive rights of all people must be preserved and protected as well as the equal rights and protections for people who are transgender, nonbinary, and gender nonconforming.   

The brief was filed in separate cases in San Francisco and Baltimore — a PDF of the Baltimore version of the brief is included above.