Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act’s Nondiscrimination Mandate
abstract. Hobby Lobby represents a high-water mark in a decades-long movement to facilitate conscientious objection at both the federal and state levels. In addition, the number of conscientious objectors has grown because hospital consolidation has increased the dominance of the Ethical and Religious Directives, which limits the care provided by Catholic hospitals. But a little noticed provision of the ACA—Section 1557—expresses new congressional commitment to equality in access to care. Section 1557 incorporates into federal healthcare law a robust definition of sex discrimination that may limit conscientious objectors’ ability to deny patients necessary reproductive health services as well as information about their health status. The law’s nondiscrimination provision requires a more equitable balance between the religious liberty of medical providers and patients’ rights to care and information.
author. Yale Law School, J.D. expected 2016; London School of Economics, M.Sc., 2013; University of Cambridge, M.Phil., 2012; Yale University, B.A., 2011. I am indebted to Abbe Gluck and Reva Siegel for generous guidance and supervision, and to Brigitte Amiri, Marvin Lim, Kara Loewentheil, Douglas NeJaime, and Priscilla Smith for expert advice. I am also grateful for friends, who make the best editors: Alexandra Brodsky, Courtney Dixon, Christine Monahan, Daniel Townsend, and Isaac Arnsdorf. I would especially like to thank Sam Adriance, Bridget Fahey, Julie Veroff, Meng Jia Yang, and Rachel Bayefsky for their tremendous support and insightful comments throughout the editing process.
Tamesha Means was just eighteen weeks pregnant when her water broke.1 She rushed to the only hospital in the county, Mercy Health Partners Muskegon, Michigan.2 But the doctors there did not tell her that because of her condition, the fetus would not survive.3 They did not tell her that continuing with the pregnancy would pose serious health risks,4 and they did not tell her that the safest choice would be to terminate the pregnancy.5 Instead, they sent her home and told her to see her doctor in a week or so.6
Means returned to the hospital the next day. She was bleeding this time, with painful contractions, and a fever.7 The doctors suspected that Means was suffering from a bacterial infection that could be fatal.8 But again, they sent her home.9 Later that day, Means returned to the hospital a third time—now with unmistakable signs of infection.10 The doctors were preparing, yet again, to turn her away when she began to deliver.11 The baby died immediately after delivery,12 and Means was left sick with a potentially deadly infection.13
Why did Mercy Health Partners refuse to provide care to Means? The hospital adhered to the Ethical and Religious Directives for Catholic Health Care Services.14 The Directives are seventy-two numbered instructions that outline the ethical and religious imperatives for Catholic healthcare providers.15 As relevant to Means’s case, the Directives specify:
· Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted.16
· The free and informed health care decision of the person . . . is to be followed so long as it does not contradict Catholic principles.17
· A Catholic health care institution should provide prenatal, obstetric, and postnatal services for mothers and their children in a manner consonant with its mission.18
The Directives instructed Mercy Health Partners not to facilitate miscarriage for Tamesha Means, even if there was no chance that the pregnancy would result in a viable live birth.19 The Directives also prevented the hospital’s physicians from informing Means about treatment options that were inconsistent with the Directives but might be available elsewhere.20 Compounding the problem, Means was given no indication that Mercy Health Partners, as a religiously affiliated hospital, might withhold information, so she continued to seek treatment from the same doctors as she grew sicker.21
Tamesha Means’s story is not unique. Catholic hospitals provide fifteen percent of hospital beds in the United States, and an estimated one in six Americans receives medical treatment at a Catholic hospital each year.22 Because these hospitals both restrict the services they provide and may not inform patients about those restrictions, many hospital visitors may not even know that a hospital has a religious affiliation or that the Directives adopted by such hospitals constrain treatment, referral options, and the provision of information. Further, the Directives prevent physicians who wish to provide comprehensive care to their patients from doing so.23
This Note explores women’s access to healthcare in the contemporary landscape of hospital consolidation and the expansion of medical refusals. In recent years, conscience clauses have increasingly enabled religious hospitals to refuse reproductive care to their patients. Access to reproductive care has been further compromised by an unprecedented wave of mergers between religious and nonsectarian hospitals. These mergers have spread the Directives to more and more hospitals across the country. These two trends together have limited women’s access to necessary reproductive care, as well as to critical information about their health.
But there is a remedy. In the text of the Affordable Care Act (ACA), Congress expressed a novel commitment to nondiscrimination in healthcare, which, for the first time, may recognize as sex discrimination the kinds of refusals of health status information and reproductive care that have increasingly taken hold across the country. The ACA requires us to strike a better balance between the interests of religious liberty and the interests of sex equality in access to healthcare.
The United States is at an inflection point in deciding to what extent the law will allow religious claims to trump other rights and interests. Controversial conscience claims aired in the Supreme Court last term in Burwell v. Hobby Lobby24 have received widespread attention. However, Part I illustrates another conflict playing out more quietly in healthcare across the country: the rights of patients to safe and effective medical treatment and information are colliding with the religious liberty of Catholic healthcare providers to withhold services and information.25 Part I shows that federal and state laws have steadily expanded to license medical refusals by more entities that provide and pay for healthcare. Furthermore, this Note is the first to demonstrate that the broadening Directives, which place higher limits on the care available at Catholic and Catholic-affiliated hospitals, have matched the statutory expansion of rights to medical refusals at every step.
Recent developments in the healthcare market have, in the wake of the ACA, exacerbated the problem of medical refusals. Anxiety among healthcare providers about their fate in the post-ACA world has accelerated consolidation to record levels. Today, integrated-care networks incentivized by the ACA aim to wring out excess costs as hospitals try to regain pricing power.
As Part II demonstrates, this push to consolidate has increased the dominance of the Directives in healthcare systems across the United States. This push, together with the well-documented growth of Catholic hospital systems, means that the exemptions sought by religious healthcare providers will have a larger impact than ever before. If these two trends—the expansion of conscientious objection and the consolidation of U.S. hospitals—continue without intervention, they will lead to the dramatic reduction of services, referrals, and information for female patients regarding their reproductive care.
The trend toward expanded refusals and consolidated hospitals has, to date, vindicated only the religious liberties of healthcare providers. These interests have not been sufficiently balanced against federal commitments to access and equality for the many women affected by these refusals. However, a little-explored provision of the Affordable Care Act, lost among the high-profile challenges to the Act in Hobby Lobby and King v. Burwell,26 expresses a deep commitment to antidiscrimination principles in access to healthcare. It demands a more appropriate balance between the rights of female patients seeking healthcare and information on their health status, on the one hand, and the rights of providers to conscientious refusal, on the other. The ACA’s nondiscrimination provision should be taken seriously as part of the Act’s broad vision of healthcare reform. That the ACA has also incentivized the contemporary merger frenzy and created a push for clinical integration, thereby extending the Directives’ reach, makes it especially important that the Act’s antidiscrimination commitments be allowed to take full effect.
Part III develops an account of the ACA’s non-discrimination provision, Section 1557. As Part III.A shows, this provision establishes for the first time a robust definition of sex discrimination in healthcare. Section 1557 incorporates Title IX’s private right of action for patients and its definition of sex discrimination, which deems pregnancy discrimination to be discrimination on the basis of sex. The ACA thus represents a paradigm shift in how we should conceive of sex equality in healthcare. Part III.B discusses how Section 1557 should be viewed as a federal counterweight to conscience protections, requiring us to reassess the balance between sex equality and religious liberty. It demonstrates how such a balance would increase access to reproductive information and potentially to underlying services without infringing on critical conscience protections. Section 1557 should be understood to limit overly broad and far-reaching refusals enabled by expanding state laws and commercial relationships that increasingly connect religious and nonsectarian hospitals. Part III.C then analyzes how this provision might be applied to emergency reproductive care and information about health status, and it chronicles Section 1557’s interactions with other federal and state law.
The ACA has expanded the definition of sex discrimination in healthcare just as medical refusals compromising the reproductive rights of patients have reached their peak. This Note argues that Section 1557 can be read to challenge practices that disadvantage pregnant and pregnancy-capable patients. Such a reading of the ACA’s nondiscrimination provision may challenge current practices—apparently authorized by state law and previously unchecked federal law commitments to religious liberty—that deny patients reproductive care and information. As religious refusals and hospital consolidations have expanded, together they have helped to produce a crisis in access to reproductive care. As long as these trends and their unanticipated effects remain unchecked, the antidiscrimination commitments of the ACA will remain unrealized.
The Supreme Court’s decision in Hobby Lobby limits the reach of the ACA’s contraceptive mandate and expands conscientious objection in the realm of reproductive rights. Some for-profit corporations may now object to providing health insurance that covers contraception. But federal and state laws have long authorized claims of religious medical refusals, a trend that has been picking up since the 1990s. These allowances have coincided with larger demands for accommodations from Catholic hospitals, as a result of the expanded exemptions set out in the Ethical and Religious Directives themselves. The growing list of restrictions on services at Catholic hospitals, combined with more expansive accommodations at the state and federal levels, has produced a healthcare landscape in which fewer and fewer hospitals provide a full range of services for women.
Immediately after Roe v. Wade announced a right to abortion,27 Congress responded to concerns that medical staff would have to perform abortions despite religious objections by passing the Church Amendment.28 Under this Amendment, individual healthcare providers cannot be required to perform abortion or sterilization procedures.29 Further, the federal government cannot, as a condition of receipt of federal funds, require providers to make their facilities available for such procedures if they contravene the provider’s “religious beliefs or moral convictions.”30 The Amendment actually protects healthcare providers on both sides of the abortion issue: it prevents entities that receive certain federal funding from discriminating against medical personnel who either perform or refuse to perform abortion or sterilization procedures.31 The Amendment’s legacy, however, has not been so even-handed.
Immediately following the passage of the Church Amendment, these hospitals for the first time widely adopted the Directives, which helped to stake out and solidify their religious claims.32 The Directives explicitly banned birth control along with tubal ligation, artificial insemination, and abortion.33
Now in their fifth edition, the Directives cover categories such as “The Pastoral and Spiritual Responsibility of Catholic Health Care,” “The Professional-Patient Relationship,” “Issues in Care for the Beginning of Life,” and “Forming New Partnerships with Health Care Organizations and Providers.”34 “The [D]irectives sanction prenatal care and natural family planning but prohibit nearly all other reproductive services, including all other birth control methods, emergency contraception, infertility treatment, sterilization, and abortion.”35 In discussing “[b]eginning of [l]ife” issues, the Directives state: “Catholic health institutions may not promote or condone contraceptive practices . . . .”36
Following the passage of the Church Amendment and Catholic hospitals’ rapid formal adoption of the Directives, more than half of the states enacted laws mirroring the federal protections by the end of 1974.37 Within four years, nearly all states had enacted such laws.38 With these protections in place, the issue was dormant until the mid-1990s, when changes to the structure of the healthcare industry catalyzed new exemptions.39
The Balanced Budget Act of 1997 protected two new forms of conscientious objection: (1) insurance companies administering Medicare and Medicaid benefits (payors) could now object in addition to practitioners; and (2) payors could now object to the provision of information, not just services.40 The Act provided that Medicaid managed-care plans and Medicare Choice plans may object to providing counseling or referral services on moral or religious grounds.41 In all other contexts, Medicaid managed-care organizations are explicitly prohibited from imposing “gag rules” on doctors.42
Simultaneously, the Directives underwent revisions that mirrored the congressional accommodations while also responding to market consolidation in the healthcare industry. In this period, drawing on underlying Catholic principles against “cooperation” and “scandal,” the Directives began to dictate the kinds of corporate relationships that Catholic hospitals could enter into with nonsectarian entities.43
The Coats Amendment in 199644 and the Weldon Amendment in 200545 further extended federal religious accommodation. The Coats Amendment prohibited the federal government and recipients of government funding from discriminating against providers that refuse to offer training in abortion services due to religious objections.46 The Weldon Amendment prohibited Department of Health and Human Services (HHS) appropriations from being made available to any state or local government discriminating against any healthcare entity that “does not provide, pay for, provide coverage of, or refer for abortions.”47 This Amendment defined “health care entity” to include HMOs and insurance plans.48 These expansions further entrenched payors into the conscientious objection system.
The expanding exemptions reached their peak in 2008, in the waning hours of the Bush Administration. Secretary of Health and Human Services Mike Leavitt adopted the so-called “Midnight Regulations” that specifically aimed to expand (or “clarify”) the definitions of “assistance” and “health care entity” in the Church Amendment.49 The regulation expanded “assistance” to include referrals and “health care entity” to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions,”50 as well as “hospitals and other entities” such as HMOs and health insurers.51 A leaked earlier draft would have expanded the definition of “abortion” to include so-called “abortifacient” forms of contraception, though the final text did not do so.52 The Midnight Regulations attempted to broaden federal accommodations to match expansive state laws until the Obama Administration reversed them in 2011.53 Because these regulations were reversed, federal law does not currently extend these provisions to information given to patients by their healthcare providers. The Directives, however, apply not only to the services that the U.S. Conference of Catholic Bishops’ (USCCB) hospitals can provide, but also to the information they can provide to patients.54
Recent years have seen a wave of conscience-clause expansions at the state level, matching and sometimes outpacing the activity at the federal level. These state laws tend to allow more objections without ensuring meaningful protections for patients. Today, according to a Guttmacher Institute report, forty-six states allow individual objections to abortion; forty-four allow institutional objections; ten allow individual provider refusals of contraception; six allow pharmacist refusals of contraception; nine allow institutional refusals of contraception; seventeen allow individual refusals of sterilization services; and sixteen allow institutional refusals of sterilization services.55 Almost all state conscience clauses allow nurses or doctors to refuse to treat a patient even in an emergency or other time-sensitive situation.56
The aggressive expansion of these state refusal laws began in the mid-1990s.57 The laws broadened exemptions in two respects. First, they expanded beyond abortion and sterilization to apply to contraception,58 then to end-of-life care, stem-cell research,59 and even, in some cases, to any unspecified health service to which a religious or moral objection may be raised, including counseling or the provision of information to patients about their health status.60 Second, they granted religious accommodation to more kinds of entities.61
The most sweeping new state laws extend protection to any individual involved in healthcare regarding any part of any service to which he or she objects. For example, in 2004, Mississippi enacted the Health Care Rights of Conscience Act, which extends the protection afforded to doctors and nurses to all providers, institutions, and payors.62 This Act typifies the latest trend by establishing “the right not to participate . . . in a health care service that violates [one’s] conscience.”63 It defines health care service as “any phase of patient medical care, treatment or procedure, including, but not limited to . . . patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions.”64 The Mississippi act further defines to “participate” as actions including “to counsel, advise,provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any healthcare serviceor any form of such service.”65 Moreover, it provides complete immunity from liability to healthcare providers who refuse to provide services or information.66
The expansion of the Directives in lockstep with the expansion of conscience protections has produced a new crisis in reproductive care. Overly broad accommodations have a slippery-slope effect, allowing more parties connected to the healthcare industry to opt out of more services and related actions. Even in the 1970s, as refusal laws were just beginning to take hold, the dangers were clear; the Iowa Attorney General cautioned that “one could eventually get to the point where the man who mines the iron ore that goes to make the steel, which is used by a factory to make instruments used in abortions, could refuse to work on conscientious grounds.”67 This statement foreshadowed the many expansions of religious accommodation over the next several decades.
Still, predictions about the potential effect of medical refusals did not capture more recent developments, namely the collision of expanding accommodations with the widespread consolidation of healthcare providers, partially in response to the ACA.68 Combined, these two trends create a perfect storm: not only are there more ways for Catholic hospitals and affiliated personnel and payors to object, but there are also fewer alternatives available.
In November 2014, the USCCB announced that it would update the Ethical and Religious Directives for the first time in more than a decade.69 The revisions are targeted precisely at the rules governing Catholic hospitals’ mergers with nonsectarian institutions,70 preventing workarounds that some hospitals have tried in order to preserve patient options. The new restrictions could go so far as to limit hospitals’ relationships with suppliers, such as testing labs.71 The Directives, it seems, are poised to exert further control over nonsectarian healthcare entities that engage with Catholic hospitals.
While hospital mergers have been on the rise since the 1990s, the merger frenzy has intensified in the post-ACA healthcare landscape. Because some of the most financially successful hospital systems are Catholic, they have increased their market share significantly.72
Since the ACA’s passage, hospital consolidation has intensified.73 In 2012, for example, 105 mergers and acquisitions (M&A) were reported, double the annual figures from the “pre-ACA, pre-recession” years of 2005 to 2007.74 The consulting firm Booz & Co. predicts that the Affordable Care Act will cause 1,000 of the U.S.’s 5,000 hospitals to undergo additional M&A activity in the next five to seven years.75
The ACA encourages consolidation in two respects. One is the unintended byproduct of shaking up the healthcare landscape; the other is an intentional effort to reduce costs. In the first respect, the ACA has spurred consolidation by empowering commercial payors to negotiate prices with healthcare providers, including hospitals,76 which had been criticized for exorbitant costs.77 Concerned about their leverage in negotiations, some hospital systems are responding to the ACA by seeking to expand and thereby improve their bargaining position.78 In this respect, hospital consolidation is an unintended, though foreseeable, byproduct of the ACA.
In another respect, healthcare consolidation is explicitly part of the ACA’s blueprint for reform. Some ACA programs are aimed at wringing excess costs out of the healthcare system. One such mechanism is clinical integration, which involves coordinating patient care across a “continuum” of services and platforms, both inpatient and outpatient.79 The ACA encouraged clinical integration by providing financial incentives and support for various forms of partnership between medical providers.80 To benefit from the ACA’s perks, healthcare entities must demonstrate increased efficiency and reduced cost to patients by showing that their proposed consolidation will meaningfully integrate the two healthcare entities. An example of such integration might be reducing the number of empty hospital beds and eliminating redundant, expensive technology.81 Demonstrating such integration frequently allows consolidating hospitals to avoid antitrust scrutiny. That is, because the ACA incentivizes a particular form of merger—one that leads to clinical integration and produces cost savings—hospitals may be permitted to consolidate in ways that otherwise would raise red flags for the federal antitrust agencies.82 Hospitals therefore have increasing incentives and legal power to consolidate.83
B. The Rise of Catholic Hospitals and the Ethical and Religious Directives in the Post-ACA Merger Climate
Consolidation between Catholic and nonsectarian hospitals in this environment raises new questions about both the mergers’ antitrust implications and the religiosity of the merging entities. To satisfy guidance issued by the Federal Trade Commission (FTC),84 organizations seeking to merge must often demonstrate clinical integration, as discussed above. In other words, they must show that consolidation will result in cost savings rather than monopolistic price hikes. To satisfy the USCCB, nonsectarian organizations seeking to merge with Catholic hospitals must not compromise that entity’s compliance with the Ethical and Religious Directives.
In the 1994 edition, the Directives began to spell out how Catholic hospitals could and could not associate or affiliate with nonsectarian healthcare providers.85 The revision made clear that Catholic hospitals should not form affiliations or partnerships with hospitals that performed objectionable services such as reproductive care, including abortion.86 When non-Catholic hospitals merge or affiliate with Catholic healthcare providers, they are typically asked to adopt some or all of the Directives.87 The local bishop must approve all business partnerships involving Catholic and non-Catholic hospitals.88 Further, the USCCB has recently pledged to revise the Directives to make them even more stringent in dictating the terms of mergers and affiliations with nonsectarian hospitals.89
The more seamlessly the hospitals merge, the more clearly the institution can claim clinical integration.90 However, the more integrated the two institutions, the less opportunity for heterogeneity in service offerings under the Directives. As a result, when Catholic hospitals seek to merge with nonsectarian hospitals, the post-ACA FTC guidance pushes them toward clinical integration, which then pushes the hospital to impose the Directives on the entire resulting healthcare entity. The ACA therefore discourages the merging hospitals from leaving sufficient clinical and legal separation from the Catholic hospital to allow for a full battery of services in the nonsectarian hospital.
In this way, the pairing of this antitrust treatment and the religious objection issues facilitates an ever-increasing Catholic market share. Given the commercial success of Catholic hospital systems,91 future acquisitions and mergers seem likely to increase the reach of the Directives. And the Directives’ imperatives on mergers will likely become more extensive, especially after planned revisions to deal specifically with post-ACA consolidation.92
Moreover, mergers can lead to restricted care even where the Catholic hospital does not acquire the other hospital. Nonsectarian hospitals seeking to buy Catholic hospitals will also have to demonstrate clinical integration. Additionally, they will run afoul of the Directives unless the acquiring entity also agrees to abide by them. Indeed, Catholic hospitals may well be able to leverage the perceived precariousness of the post-ACA marketplace to demand more from powerful merger partners.93
Market-share growth likely understates the full reach of Catholic hospitals’ restrictions on care. Data suggest that concerns about the increasing sway of the Directives are warranted. The market share for Catholic hospitals has been increasing over the past decade. Today there are 645 Catholic hospitals in America, together caring for one in six American patients.94 This represents a sixteen percent increase in Catholic hospital market share from 2001 to 2011.95 Furthermore, since 2011, the largest Catholic hospital networks have grown at least another thirty percent.96
Market-share growth likely understates the full reach of Catholic hospitals. Because Catholic hospital systems have increasingly entered into affiliations and acquisitions of non-sectarian hospitals, hospitals that are not strictly Catholic also abide by the Directives, at least in part. Since 1990, more than 130 known affiliations involved a Catholic hospital or health system, and eighty percent of those were between Catholic and non-Catholic organizations.97 This phenomenon manifests in the widening discrepancy between religious hospitals and hospitals that are affiliated with or operated by Catholic healthcare systems. In 1976, the percentage of all religious or religiously affiliated hospitals that were affiliates (rather than religious hospitals themselves) was fourteen percent; today it is twenty-nine percent.98
Religiously affiliated hospitals most dramatically demonstrate the post-ACA trend toward consolidation and clinical integration.99 This subset of hospitals will likely continue to grow as nonsectarian and Catholic hospitals feel more pressure to merge in the uncertainty of the post-ACA market. Nonsectarian hospitals that become affiliated with the USCCB will likely be increasingly required to abide by the Directives because of the clinical integration needed to pass muster under antitrust laws. Nonsectarian hospitals may further compromise on reproductive care by accepting mergers or acquisitions with religious stipulations as a means of survival.100
While conscience claims have expanded and healthcare entities continue consolidating in the wake of the ACA’s passage, parts of the Act itself reflect a profound commitment to principles of nondiscrimination. Its relatively unexamined nondiscrimination provision, Section 1557, seeks to expand the rights of all patients to equal healthcare free from discrimination. Section 1557 specifically protects women’s rights to equal healthcare in ways that conflict with the current restrictions on reproductive care access. Section 1557 broadens the federal definition of sex discrimination in healthcare. It is perhaps not surprising that this Act—which sought to federalize rights to healthcare and had, as part of its blueprint for reform, included incentives for mergers and integrated care—should also expand affirmative patient rights, both to guarantee citizens’ rights to care and to offset the potential effects of merger activity spurred by the ACA. So the seeming tension between the ACA’s effects on the provision of reproductive care and its nondiscrimination commitments should not undermine claims about the ACA’s robust nondiscrimination commitments. Indeed, until these nondiscrimination guarantees are realized, the ACA’s promises remain unfulfilled.
The potential reach of Section 1557 to revolutionize patients’ rights in the face of sex discrimination has recently been recognized for the first time in federal court.101 In March 2015, a district court in Minnesota refused to dismiss the claims of a trans patient who sued his local hospital for discrimination after suffering verbal insults, delays that put him at risk of sepsis, and unnecessary and invasive procedures at the hands of physicians and nurses at his local hospital.102
Part III.A discusses Section 1557’s expansive definition of sex discrimination and this definition’s possible application to abortion, reproductive health information, and contraception. Using this definition of sex discrimination to ensure access to reproductive care does not necessarily entail infringement on conscience protections, as Part III.B shows. Rather, Section 1557 demonstrates a federal commitment to curtailing sex discrimination by ensuring access to care. This commitment should be understood as a counterweight to interests in religious liberty, thereby creating the need to balance these two interests. Section 1557 could therefore limit certain forms of refusals that have been authorized only on the state level and present meaningful barriers to access. Finally, Part III.C develops an account of how Section 1557 should be interpreted as it applies to emergency reproductive care and information about health status in light of other federal and state statutes. Part III.C also addresses the way in which Section 1557 may interact with the Religious Freedom Restoration Act and why courts should analyze the ACA’s nondiscrimination provision differently from the Supreme Court’s analysis of the contraceptive mandate in Hobby Lobby.
A. Section 1557’s Expansive Definition of Sex Discrimination in Healthcare: Reproductive Access as Sex Equality Under the Law
The Affordable Care Act’s non-discrimination provision provides patients with protection against a wide range of practices that newly constitute sex discrimination. Section 1557 of the ACA provides as follows:
[A]n individual shall not, on the ground prohibited under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments).103
By covering all health programs and activities that “receiv[e] Federal financial assistance, including . . . contracts of insurance,” the nondiscrimination provision reaches broadly to include hospitals and pharmacies, in addition to insurance providers.104 Furthermore, the provision uses the definition of sex discrimination from Title IX, which includes discrimination on the basis of pregnancy.105 By specifically incorporating the “mechanisms provided for and available under . . . Title IX,” Section 1557 incorporates the private right of action for disparate treatment and disparate impact claims provided in Title IX.106
Through Section 1557, Congress recognized as sex discrimination, for the first time, certain practices relating to women’s healthcare access. In addition to explicitly seeking to correct the practice of “gender rating,” where insurers base premiums on the sex of the individual they are covering,107 the history and text of the ACA demonstrate a commitment to sex nondiscrimination principles more broadly,108 and Section 1557’s specific reliance on Title IX’s definition of sex discrimination suggests that the ACA aims to provide meaningful protections to women in healthcare. While regulations have not yet been promulgated, the Director of the Office of Civil Rights for the Department of Health and Human Services has emphasized, in an opinion letter, that Section 1557’s ban on sex discrimination sweeps much more broadly than previous antidiscrimination law in this space.109 It goes so far as to “extend[ ] to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and to prohibit “discrimination regardless of the actual or perceived sexual orientation or gender identity of the individuals involved.”110There is reason to believe, therefore, that Section 1557’s nondiscrimination mandate should be read expansively.
2. Protections Above the Equal Protection Clause: Section 1557 in the Context of Other Statutory Protections Against Pregnancy Discrimination
Because the definition of sex discrimination incorporated into Section 1557 includes discrimination on the basis of pregnancy,111 Section 1557 may be read as a counterweight to expansive protections for religious liberty at the federal and state levels. Section 1557 provides antidiscrimination protections greater than those of the Equal Protection Clause by incorporating Title IX’s definition. While Title IX’s statutory text only defines impermissible discrimination as being “on the basis of sex,” the regulations specifically ban discrimination against students, employees, and applicants on the basis of pregnancy.112 By incorporating Title IX’s definition of sex discrimination, Section 1557 therefore offers more robust protections than those guaranteed under the Constitution. For example, in Geduldig v. Aiello,113 the Supreme Court ruled that unfavorable treatment of pregnant women did not necessarily amount to sex discrimination in violation of the Equal Protection Clause.114 The Court held that where an insurance program excluded pregnant women from receiving benefits, the relevant categories were “pregnant women and nonpregnant persons.”115 Such a program, the Court reasoned, was therefore not categorizing on the basis of sex and did not present an Equal Protection problem. But when the Court used the same logic to hold that Title VII’s bar on sex discrimination in employment did not reach pregnancy discrimination,116 Congress passed the Pregnancy Discrimination Act (PDA) to repudiate the Court’s holding.117 This definition of sex discrimination, including pregnancy discrimination, is incorporated in Title IX and also in Section 1557.118
Section 1557 should therefore be understood to stand next to Title VII and Title IX, defining a statutory scheme of antidiscrimination law more robust than constitutional protections alone. Such a definition of sex discrimination provides more protections for women seeking healthcare, and specifically care related to reproduction.119 When providers single out a medical service specially affecting women’s reproductive capacity for exclusion, they target pregnant women or women of childbearing age for unequal treatment.120 When hospitals refuse pregnant women treatment or information because of their pregnancy, or refuse reproductive-age women treatment or information, the refusals are subject to scrutiny as sex discrimination under Section 1557.
Some might argue that if the ACA’s nondiscrimination provision were intended to herald such a dramatic change in patients’ rights, then it surely would have received more attention, especially amid high-profile challenges to the ACA, including Hobby Lobby121and King v. Burwell.122 This argument, however, does not stand up to scrutiny. In fact, the House version of the provision would have created an even broader right, barring discrimination on any ground apart from the “need for medical care.”123 The version of Section 1557 that is law today therefore represents a more modest articulation of the rights Congress contemplated. Taken together, the House and Senate versions demonstrate an intention to create a robust antidiscrimination right for patients.124 Such a commitment to nondiscrimination is, perhaps, unsurprising in the context of a law that aimed to expand access to healthcare to all Americans.
Beyond the record of the various versions of the nondiscrimination provision, there is relatively little legislative history on Section 1557. Again, however, Congress’s silence does not necessarily suggest it did not mean Section 1557to significantly alter patients’ rights. Rather, the lack of history may indicate that the provision made its way quietly into the ACA in order to avoid attention and conflict. This path would mirror that of the contraception mandate, which was incorporated with little fanfare through circuitous administrative policy-setting.125
Furthermore, the legislative history on the ACA’s interaction with conscience protections suggests that Congress intended to create rights to healthcare that might well realign the current balance between access to care and rights of religious refusal. Indirect evidence of congressional intent may be found in discussions of abortion and conscience protection under the ACA as a whole. The Women’s Health Amendment126 (which ultimately brought about the contraception mandate) arguably exemplifies the balance between healthcare access and conscience protection that Congress struck in the ACA. Strong conscience protections that would have crippled the Act’s nondiscrimination provision were proposed and summarily rejected.127
In fact, that the ACA might curtail broad medical refusal laws was recognized by some key players during floor debate. The USCCB authored a letter, read out on the Senate floor, that opposed the ACA’s potential reach to abortion services; the USCCB thereby acknowledged the ACA’s potential effects on religious refusals and the Bishops’ own Directives.128 Similar objections to the ACA’s treatment of abortion were raised by Republican Senators during floor debate and were not given effect in the bill’s final version.129 Additionally, Congress explicitly rejected expanding the federal conscience clause or providing for explicit conscience protection in the ACA when it voted down the Brownback Amendment, which would have prevented the ACA from “requir[ing] an individual or institutional health care provider to provide, participate in, or refer for an item or service to which such provider has a moral or religious objection, or require such conduct as a condition of contracting with a qualified health plan.”130 Moreover, while the ACA does not change federal conscience protection,131 the Act makes clear that it could restrict state-level conscience protection, indicating that Congress expected the ACA to ban some practices authorized under state law at the time.132
3. Expanding the Theory of Pregnancy Discrimination as Sex Discrimination To Reach Reproductive Care Under Section 1557
Section 1557’s expansive definition of sex discrimination potentially affects medical refusals that deny women reproductive care. Equality arguments for reproductive care flow from the differential treatment of pregnant or pregnancy-capable women, who are denied a category of care. This argument rests on the incorporation of pregnancy discrimination as sex discrimination in the statute by reference to Title IX. When Title IX’s prohibition on pregnancy discrimination has been tested in courts, the litigation has primarily pertained to pregnant high school students who were denied admission to the National Honor Society (NHS).133 But these cases have clearly reaffirmed Title IX’s reach, recognizing pregnancy discrimination as sex discrimination under the law.
By expanding the definition of sex discrimination to include pregnancy discrimination, Section 1557 calls into question a broad set of exclusions, including the denial of contraception and abortion. In the context of access to contraception, for example, singling out contraceptives for exclusion may constitute sex discrimination under Section 1557 via its incorporation of Title IX and close relationship to Title VII.134 Under Title VII, the Pregnancy Discrimination Amendment (PDA) has been understood to reach contraceptive coverage.135 (This definition of sex discrimination under Title VII was not at issue in Hobby Lobby, and therefore the Court did not address it.136) Further, the EEOC has interpreted Title VII’s definition of sex discrimination to forbid singling out contraception for exclusion.137 This reading has also been endorsed by several federal courts138 but rejected by others.139 However, the EEOC reaffirmed this reading of Title VII in guidance issued after the Hobby Lobby decision—demonstrating a belief that Hobby Lobby did not alter the meaning of sex discrimination under Title VII.140 The idea that contraceptive access as an equality concern is also found outside the Title VII context in state contraceptive equity laws, 141 and even in some of the arguments aired to the Supreme Court in Griswold v. Connecticut142—the first articulation of a constitutional right to contraception.143
These same arguments extend to abortion, an area that also potentially raises concerns of pregnancy discrimination.144 Even under the less robust constitutional regime of sex discrimination protection, scholars have argued for recognizing equality interests at the heart of the constitutional abortion right.145 The extension of sex discrimination to abortion under Title VII and Title IX, however, has been less tested than the contraceptive access question. It also remains more uncertain because Title IX is explicitly neutral on abortion and does not require any entity to provide or pay for abortion care.
In the context of information relating to reproductive health, the underlying equality interest is the same. If medical information is withheld, pregnant or pregnancy-capable women are uniquely denied access to critical information.
Using Section 1557 to increase access to information and care would not necessarily restrict the central federal rights that conscience clauses have historically aimed to protect. Section 1557 should be understood as a congressional commitment to ensuring statutory rights to reproductive care. This federal commitment will, of course, clash with other federal and state conscience protections. But courts can strike a balance between equality interests and religious liberty that respects conscience claims while keeping in view the potential harms to patients.146
Catholic hospitals and providers might draw on RFRA, a “permissive accommodation of [the free exercise of] religion,”147 as the primary source of statutory protection against infringements on religious liberty. In RFRA, Congress provided additional protection for the practice of religion—above the constitutional requirements imposed by the Free Exercise Clause—as long as RFRA’s application does not compromise compelling interests served by other federal laws.148 Under this framework, Section 1557’s commitments to healthcare access may represent a compelling interest upon which conscience-based medical refusals may infringe. Under the ACA, the federal government’s interest in assuring access to care presents a compelling antidiscrimination mandate that should be taken seriously by courts.
This kind of balancing analysis mirrors the way in which burden-shifting typically works in antidiscrimination law.149 Demonstrating that a formal policy constitutes facial sex discrimination would be only the first step in establishing liability under Section 1557. Section 1557, by incorporating Title IX, dictates that when healthcare providers have created an unlawful classification based on sex, a strong presumption is created that the challenged policy violates the law.150 Once such a policy is established, the healthcare provider would have to articulate a permissible justification for the sex-based classification.151In the context of religious or religiously affiliated healthcare providers, hospitals operating under the Directives would surely assert that the nondiscriminatory reason for their exclusions on care is conscientious or religious objection. But the challenge would not end there. Even when a lawful justification for the challenged policy can be articulated, Section 1557, by incorporating Title IX’s definition of sex discrimination, seems to require tailoring for a policy challenged as disparate treatment in order to minimize the resulting discrimination, even if such a policy has benign motivations.152 The analogy to Title VII burden-shifting would suggest that even where healthcare providers justify limits on care on the basis of religious belief, the nondiscrimination mandate requires the challenged policy to minimize the resulting discrimination.
This balancing test involves analyzing both the protections for conscience claimants and the interests of patients seeking services. As Part I of this Note demonstrates, central federal conscience protections for healthcare providers, properly understood—in the Church Amendment153 and other federal law154—historically protect the individual provider (doctor or nurse) who does not want to directly perform or assist in performing an abortion.155 This notion is consistent with the way many people intuitively understand the balance of rights at stake in medical refusals. Particularly where a woman’s life and well being hang in the balance, claims of conscience that lie at the level of an institutional policy rather than an individual’s objection to performing an abortion should not be permitted to trump the patient’s rights.156
As Part II of this Note has demonstrated, M&A activity between hospitals increasingly brings nonsectarian hospitals into the widening circle of providers that deny women medically necessary reproductive care and health information. The reach of medical refusals will likely increase further among nonsectarian hospitals given the trend in hospital consolidation. As more historically nonsectarian hospitals come under the Directives’ control, a dwindling percentage of medical refusals will involve either the central claim of an individual physician refusing to participate directly in an abortion or even an objection raised by a historically religious hospital. Today, even attenuated commercial relationships between religious and nonsectarian healthcare providers have caused nonsectarian providers to cease offering a full range of reproductive care.157 That the Directives now reach nonsectarian institutions that may hold no meaningful religious affiliation beyond commercial relationships demonstrates how much Section 1557 could do to increase reproductive health access and patients’ rights without compromising core religious rights of objectors.158
Rather than challenging conscience protections of individual healthcare providers, Section 1557 constrains institutional claims of conscience and frees up willing physicians employed at religious hospitals to provide services. In this sense, Section 1557 may liberate physicians currently employed at religious and religiously affiliated hospitals to care for their patients.159 For example, Dr. Brian Smits, an ob/gyn working at a Catholic hospital, faced such a dilemma when a patient, whose membranes had ruptured, needed an induced abortion. Dr. Smits reflected:
I’m on call when she gets septic, and she’s septic to the point that I’m [using medication] to keep her blood pressure up and I have her on a cooling blanket because she’s 106 degrees. And I needed to get everything out [of the uterus]. And so I put the ultrasound machine on and there was still a heartbeat, and [the hospital ethics committee] wouldn’t let me [do the procedure] because there was still a heartbeat. And this woman is dying before our eyes.160
Dr. Smits felt obligated to induce the abortion—“I was just livid”—but the claims of institutional conscience trumped both his own desire to perform the necessary medical procedure and also the rights of the patient dying on the table.161 Stories like that of Dr. Smits illustrate the potential to offer comprehensive reproductive care at religiously affiliated hospitals without compromising the religious convictions of individual providers. Such reforms might well, in fact, respond to the conscience claims of doctors and nurses who feel it is their duty to assist patients in such situations.
To be sure, Section 1557’s commitments to equality in access to care may conflict with protections for the religious liberty of healthcare institutions and providers. The appropriate balance between these interests may differ depending on whether the care and counseling sought is emergency or non-emergency. This Note considers the application to emergency abortion care and access to information about health status. It argues that when denial of emergency reproductive services constitutes sex discrimination, there may be limits to the permissive accommodations for religious refusals, including those under RFRA. Section 1557 may reach beyond these applications, but this Part illustrates one way in which the ACA’s nondiscrimination provision advances core rights of female patients.
RFRA’s green light for medical refusals now comes up against the nondiscrimination interests vindicated by Section 1557’s emergency care mandate. As explained above, RFRA is properly understood as a permissive accommodation for religious exercise. It constrains generally applicable laws that substantially burden religious practice, but only insofar as the accommodation does not infringe on another compelling interest. Section 1557 vindicates the government’s interest in sex equality in healthcare, and the provision therefore may reel in the permissive religious accommodation conferred under RFRA.
Resolving the competing interests in this federal statutory conflict would require a two-step analysis. When the Government has substantially burdened an entity’s exercise of religion, that entity gains a RFRA exemption unless the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.”162 This test is the same one that the Supreme Court applied in Hobby Lobby when it sustained a RFRA challenge to the ACA’s contraceptive mandate. Were a court to consider this test in the context of Section 1557, however, the result would likely be different because of both the specific compelling government interest at stake and the third party harms that flow from medical refusals to provide emergency care.
As to the first prong, Section 1557 invokes a stronger compelling interest than the one advanced by the government in Hobby Lobby. In Hobby Lobby, the Government argued that its primary interests at stake were promoting “public health” and “gender equality.”163 The majority criticized these interests as overly “broad.”164 One might disagree with the Court on how “broad” gender equality interests really are; however, it is clear that the general interest in promoting gender equality is not equivalent to the specific interest of enforcing a particular federal statute that defines the religious exemption sought as sex discrimination. Because Congress in the ACA has statutorily defined the practice in question as sex discrimination, the Government’s interest is substantiated and specific: enforcing a federal antidiscrimination protection.
In fact, in Hobby Lobby, the Court acknowledged RFRA’s limits on occasions when the law confronts antidiscrimination protections. The majority strenuously insisted that its decision provided “no . . . shield” for allowing “discrimination in hiring, for example on the basis of race, [that] might be cloaked as a religious practice to escape legal sanction. . . . The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”165 The Court made such an effort to distinguish the situation in Hobby Lobby from that arising in religious challenges to antidiscrimination law because, in general, religious objection claims have failed in the face of racial discrimination claims.166 The specific focus on race in this passage from Hobby Lobby should not be read to exclude other forms of discrimination from consideration; the majority presents race as an “example.”167
Importantly, religious objections have failed in the face of sex discrimination claims before. For example, in Dole v. Shenandoah Baptist Church, the Fourth Circuit applied Title VII and rejected the argument that religious schools should be able to pay women less than men based on the belief that the “Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.”168 The court stated that the government interest in preventing affirmative discrimination was of the “highest order.”169 The Ninth Circuit similarly rejected a religious school’s argument that it should be allowed to offer unequal benefits to men and women.170
RFRA challenges to Title VII’s bar on discrimination have succeeded only in extremely narrow circumstances.171 They have for the most part prevailed only when the claim for religious exemption mirrors the traditional common law “ministerial exemption,” which involves the right of religious institutions to teach the precepts of theology in accordance with their religion.172 Therefore, if a court did not weigh heavily the compelling interest in preventing sex discrimination, it would be dramatically revising the existing jurisprudence on the relationship between RFRA and federal antidiscrimination law.
For the second prong of RFRA analysis, the “least restrictive means” test, Section 1557 would entail a different calculus than the Court applied in Hobby Lobby, though the extent of that difference depends on context. In Hobby Lobby, when the Supreme Court analyzed the burden faced by women whose employers would refuse to provide contraceptive coverage, it relied largely on the unique factual circumstance that “HHS ha[d] already established an accommodation for nonprofit organizations with religious objections” to providing the coverage.173 These points allowed the Court to conclude that the effect on women of a religious exemption would be “precisely zero.”174 Justice Kennedy’s concurrence particularly emphasized that the Court would not implicate third-party harms because “the mechanism for [accommodation] [wa]s already in place” to ensure that women would not be denied coverage.175
The Court’s—and Justice Kennedy’s—concern about the offset of harm to women indicates that for at least five of the Justices, the “least restrictive means” analysis under RFRA may well come out differently when considering the provision of emergency, life- or health-preserving services, and health status information. Because Section 1557 reaches the provision of services and information by healthcare providers, a court could not readily claim “zero” impact in the context of emergency healthcare or where women are denied the very information about necessary treatment that they may not know or be reasonably able to seek elsewhere. This is especially true where Catholic or religiously affiliated hospitals are the sole community providers. Increasingly, Catholic hospitals are the sole or primary providers: as of 2011, there were thirty Catholic hospitals serving as sole community providers.176 These hospitals see over 890,000 emergency room visits annually.177
Section 1557 should be understood to establish that nondiscrimination in healthcare requires pregnant women to have access to the same level of information about their conditions as any non-pregnant patient. While Section 1557 does not create an explicit, affirmative duty to provide reproductive information to patients, it prohibits healthcare providers from deciding whether to disclose or withhold information to patients on a discriminatory basis. Providers’ practice of providing all relevant information in other cases would therefore render discriminatory the choice not to provide information to pregnant patients under Section 1557.
Under Section 1557, the hospital would have to inform a patient like Tamesha Means that she might need to seek an abortion in the future, even if the hospital would not perform it. In the context of hospital consolidation—where Catholic or religiously affiliated hospitals increasingly serve as sole community providers—solving the problem of information alone may not solve the access problem. Nevertheless, scaling back conscience clause accommodation to exclude the withholding of information provides a modest but much needed protection for many patients seeking care. The requirement to provide information would potentially deal with two problems: the first-order problem of patients at religious hospitals not learning of viable alternatives to their care plans; and the second-order problem of patients not being informed that their care at a Catholic institution may involve disclosure of a limited subset of treatment options.178
Current federal law does not exempt healthcare providers from a responsibility to provide information about abortion on religious grounds. Information regarding abortions is legally different from the service itself. First, the Church Amendment guarantees that religious doctors, nurses and hospitals do not need to participate in or be required, as a condition of receipt of federal funds, to make facilities available for abortion.179 Additionally, while the 1997 Balanced Budget Act expanded conscience clause exemptions to reach payors, it did not explicitly extend that right of exemption to healthcare providers. Therefore, only laws at the state level grant broader conscience clause exemptions, including the right of providers to withhold information.180
In addition to the absence of federal laws expressly extending conscience protections to the provision of information, medical ethics and other federal conditions of funding support requiring healthcare providers to ensure that their patients are fully informed of their health status and choices. Medical ethics regarding informed consent focus on patient autonomy and “autonomous authorization” before a professional initiates medical plans.181 These values have been recognized under tort law,182 and they have been applied in the context of reproductive healthcare.183 Informed consent principles are also reflected in stated federal requirements under the Centers for Medicare and Medicaid Services (CMS) Conditions of Participation.184 These conditions seek to ensure patient rights: “the right to participate in the development and implementation of his or her plan of care”185 and the “right to make informed decisions regarding his or her care . . . includ[ing] being informed of his or her health status, [and] being involved in care planning and treatment.”186
So the common law has historically afforded patients a right of action, and CMS Conditions of Participation express federal commitments to informed consent. The ACA’s nondiscrimination provision would bolster patients’ rights by providing a private right of action and expressly precluding the exercise of broad state conscience clauses that allow providers to withhold information. This preemption rests not only on the general supremacy of federal law over state law, but also on the specific preemption clauses established in the ACA itself. The preemption clause of the ACA, which appears in Title I of the Act, makes clear that the ACA trumps conflicting state laws.187 Federal courts, in turn, have applied this preemption clause faithfully.188 In addition, Section 1557 carries a clause clarifying its interaction with state law.189 The fact that Section 1557 makes this preemption so explicit—given that an assumption of preemption follows naturally from both general supremacy principles and the ACA’s Title I preemption clause—evinces Congress’s seriousness about the reach of this nondiscrimination provision.
The particulars of Section 1557’s preemption clause provide further evidence of Congressional intent. The provision provides that “nothing in this title . . . shall be construed to . . . supersede State laws that provide additional protections against discrimination” to those expounded in 1557.190 Congress not only contemplated the possibility that Section 1557 might come into conflict with state law, but also provided an explicit preemption clause making clear that Section 1557 may only expand, and not contract, antidiscrimination protections. This one-way impact on state antidiscrimination law becomes especially clear when considered alongside the fact that the ACA expressly does not exempt state conscience clauses from preemption.191
Section 1557 may also be understood to protect patients who require emergency abortion care, like Tamesha Means, by recognizing access to reproductive care as an antidiscrimination right. Section 1557 claims dealing with the provision of abortion specifically face two legal hurdles beyond RFRA: Title IX’s abortion neutrality and the Church Amendment. Title IX’s definition of sex discrimination, which Section 1557 incorporates, is explicitly “neutral” on abortion. This neutrality provision, commonly referred to as the Danforth Amendment, was added as part of the Civil Rights Restoration Act in 1988.192 The text reads: “Nothing in this chapter shall be construed to require or prohibit any person . . . to provide or pay for any benefit or service . . . related to an abortion.”193 However, the implementing regulations state that that Title IX’s “abortion neutrality” does not reach “medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman.”194 Given that women presenting in a hospital setting may indeed require abortions as life-saving treatment, Title IX’s abortion neutrality does not entirely shield hospitals from providing abortion care.195 Section 1557 could thus compel hospitals to provide emergency abortion care.
Section 1557 has to overcome federal conscience provisions in establishing such a mandate. The Church Amendment, passed in the wake of Roe v. Wade, made clear that the federal government would not, as a condition of federal funding, mandate that all hospitals make their facilities available for abortions.196 While the Amendment does not contain an exception for the life or health of the woman, so that it potentially creates conflict with Section 1557, the Emergency Medical Treatment and Labor Act (EMTALA)197 and the CMS Conditions of Participation198 indicate that the federal government may condition funding on the availability of abortion services in limited emergency circumstances where the life or health of the patient is at risk. Furthermore, a statement in the legislative history of the Church Amendment suggests that Congress did not intend to authorize conscience claims beyond the refusal of individual healthcare providers to participate directly in abortion, such as objections by a hospital employee “who had no responsibility, directly or indirectly, with regard to the performance of [the] procedure.”199 Therefore, Section 1557 does not necessarily stand in direct conflict with existing federal law.
As a result, courts should recognize that the Church Amendment’s protection of institutional medical refusals is relatively narrow compared with Section 1557’s nondiscrimination mandate. When reading the Church Amendment in the context of existing federal requirements like EMTALA and the CMS Conditions of Participation, it becomes clear that the Amendment does not exempt all duties owed to patients where an abortion may be required. Section 1557 could therefore be read to create new affirmative rights—and a new private right of action—for pregnant women like Tamesha Means who require an abortion to protect their lives. This interpretation of Section 1557 would not reach individual objecting doctors and nurses, but it would have implications for the USCCB and Catholic hospital systems that have adopted the Directives’ policies preventing abortion at the institutional level. It would also provide new federal limits on states’ ability to broadly define medical refusals.
Two trends taken together are restricting women’s access to reproductive healthcare. First, the Supreme Court’s decision in Hobby Lobby and state conscience lawshave increased the scope of potential religious refusals, which have historically presented tremendous access problems for women. Second, hospital consolidation and clinical integration in the wake of the ACA are producing a new level of dominance by Catholic hospitals and the Ethical and Religious Directives, which mandate refusals at an increasing number of institutions. As a result, more and more of our nation’s healthcare providers can and do refuse to provide care, referrals and information to their female patients.
While the post-ACA climate has produced new access challenges for women, the ACA itself provides an explicit commitment to nondiscrimination principles and expands the definition of sex discrimination in healthcare. Section 1557 holds great potential to stop healthcare providers from practicing gender-based exclusion. In other words, the ACA affirms a commitment to reining in the kinds of refusals that the combination of conscience protections and merger activity have exacerbated.
The ACA’s nondiscrimination provision is an as-yet unfulfilled promise of equality in healthcare. The question remains whether the ACA’s novel antidiscrimination provision can provide a counterweight to medical refusals whose reach has been largely unconstrained to date.
Section 1557 might also help to connect discrimination against women on the basis of their reproductive capacity with discrimination on the basis of sex—a move that would have even broader implications for how we conceive of lived sex equality. Standing alongside Title VII and Title IX, Section 1557 could work to remedy the limited recognition of pregnancy and pregnancy-capability discrimination in Equal Protection Clause jurisprudence. Together, these statutes might provide women with meaningful protections that reach beyond our current constitutional framework in employment, education, and healthcare. As Congress and the courts increasingly equate pregnancy and pregnancy-capability discrimination with sex discrimination, our conception of gender equality stands to be strengthened.