Wonder what things might look like if the Republican controlled Congress and Donald Trump, a/k/a Der Fuhrer pass the First Amendment Defense Act ("FADA")? Look no farther tan a ruling out of the U.S. District Court for the Northern District of Texas where a right wing federal judge during the waning days of 2016 that doctors and medical personnel had the right to refuse to treat women who had had abortions and transgender patients. Indeed, the judge ruled that to require them to do so would violate the medical providers' rights of "religious freedom." Never mind that the Founders' concept of freedom of religion never contemplated such a twisting of their concept of freedom of religion: the right to worship as one chose and freedom from supporting an established church. This ruling and the language of FADA indicate that LGBT citizens, women who have had an abortion and cohabitating heterosexual couples - and perhaps others - could find themselves facing unprecedented discrimination in the near future. It is also a reminder that other than Der Fuhrer, no one is more selfish and self-centered than the "godly folk" who hate the majority of their fellow citizens. A piece in Slate looks at this grim warning:
In the waning hours of 2016, U.S. District Judge Reed O’Connor unleashed a bizarre ruling that fundamentally alters the balance between medical treatment and religious freedom in the United States. O’Connor’s decision blocked a critical regulation enacted pursuant to the Affordable Care Act, which forbade doctors from discriminating against transgender patients or women who’ve previously had abortions. Most disturbingly, O’Connor found that such a nondiscrimination rule violated the “religious freedom” of doctors and insurance companies that consider gender transition and abortion to be “evil.” The ruling marks an extreme extension of the dubious logic behind the Supreme Court’s Burwell v. Hobby Lobby decision—and indicates that conservative courts believe the purported right of health care professionals to discriminate against patients trumps patients’ right to sound medical treatment.
O’Connor recognizes only one kind of sex discrimination: hostility against a man or woman for being a man or a woman. This belief directly contradicts Supreme Court authority; it also doesn’t make much sense, since it only raises the key question of who decides whether an individual is a man or a woman.
O’Connor got away with this blinkered understanding of sex in blocking federal guidelines on bathroom access for transgender students. And naturally he pulled the same trick here, holding that the HHS rule does not build upon “sex discrimination” and is therefore unlawful.
So far, so predictable. Texas, which brought this suit along with four other states and several Christian medical associations, chose O’Connor’s court specifically because of his clear opposition to federal rules protecting transgender people. A simple ruling on sex discrimination, coupled with a nationwide injunction forbidding the HHS regulation from taking effect, could’ve ended the matter. But O’Connor—despite having already resolved the dispute—decided to go much further, analyzing the case under the federal Religious Freedom Restoration Act, or RFRA.
Ever since the Hobby Lobby decision, progressives have warned that RFRA poses a grave threat to LGBTQ rights, fearing that businesses can use it to circumvent nondiscrimination laws shielding LGBTQ people.
That fear is now an undeniable reality. O’Connor held that treating transgender patients—and even insuring transgender patients—“substantially burdens” insurance companies and hospitals’ “exercise of religion.”
And what about those abortion-related protections? O’Connor blocked those too, holding that RFRA also protects doctors and insurance companies from providing or covering “abortion-related services.” The judge may be right about that, but it really doesn’t matter, because the rule in question does not require anybody to perform or insure abortions. As Timothy Jost explains in Health Affairs, “Judge O’Connor is simply wrong in believing that [the rule] requires anyone to pay for or perform abortions.” In reality, the rule prohibits doctors and insurance companies from discriminating against women who have had abortions in the past. With his decision, then, O’Connor provides a neat template for future judges irritated by nondiscrimination statutes: Make up a version of the law that isn’t real, then strike down the real law based on your made-up version of it.
The Christian medical associations and insurance companies behind this lawsuit argued that treating transgender patients and women who’ve had abortions constituted “material cooperation with evil.” O’Connor agreed, and he decided that the law should value these beliefs over everyone else’s right to receive medical treatment. The ramifications of this reasoning are chilling, especially for women and LGBTQ people. Does RFRA bar the government from protecting gay people against medical discrimination? What about women who don’t wish to become pregnant?
This system would completely upend medical practice in the United States, legalizing prejudice-based refusal of service and placing the burden on patients to find a doctor and insurance company who will provide the treatment they need. There is no clear limit to the damage that O’Connor’s ruling could do. It appears that in our post–Hobby Lobby world, patients who draw ire from conservative Christians must get used to being deprived of insurance and denied medical treatment solely on account of their identities.
With Trump in a position to load the Supreme Court with right wing ideologues, there is a strong chance that this ruling might ultimately be upheld. Be very afraid. Religion is a pervasive evil.
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