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Bush's Final Double Standard on Religious Discrimination

December 13, 2008

In the last throes of his failed presidency, George W. Bush has been nothing if not consistent with his flurry of midnight regulations. Whether the topic is mining on public lands, mountain-top removal, endangered species, clean water or power plant emissions, Bush will try to saddle Barack Obama with last-minute rule changes invariably favoring business interests over health or environmental concerns. But in one area, President Bush is cementing a glaring if predictable double-standard. While faith-based charities receiving federal funds have Bush's blessing to discriminate in hiring, the nation's health care providers must retain workers who on religious grounds refuse to provide abortion services, artificial insemination procedures and even birth control.
In condoning illegal discrimination in hiring by religious charities receiving funds from American taxpayers, President Bush turned to his Office of Legal Counsel. Once led by John Yoo (whose infamous memo defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death"), the OLC in 2007 produced a memorandum claiming "the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith."
As Savage detailed on October 17th, the jaw-dropping Justice Department document makes patently illegal hiring practices the policy of the Bush administration:

The document signed off on a $1.5 million grant to World Vision, a group that hires only Christians, for salaries of staff members running a program that helps "at-risk youth" avoid gangs. The grant was from a Justice Department program created by a statute that forbids discriminatory hiring for the positions it is financing.
But the memorandum said the government could bypass those provisions because of the 1993 Religious Freedom Restoration Act. It sometimes permits exceptions to a federal law if obeying it would impose a "substantial burden" on people's ability to freely exercise their religion. The opinion concluded that requiring World Vision to hire non-Christians as a condition of the grant would create such a burden.

Citing the plain language of the text and Supreme Court precedent, legal scholars like George Washington University's Ira C. Lupu deemed the DOJ's policy "a very big stretch." The ACLU's Christopher Anders aptly summed up President Bush's green light for religious discrimination, "It's really the church-state equivalent of the torture memos."
To be sure, tortured logic is at the heart of the Bush White House's eleventh hour so-called "right of conscience" regulation. Through administrative fiat, Bush intends to simultaneously enshrine condescension towards the health care concerns of American women with an absolute protection for health care workers who refuse to serve them.
Following on the recent Justice Department policy enabling faith-based charities receiving federal funds to discriminate in hiring, the controversial HHS rule would dramatically broaden the ability of individual health care providers to refuse "to participate in any procedure they find morally objectionable." As the Los Angeles Times detailed, the last minute regulation soon to be finalized by Health and Human Services Secretary Mike Leavitt could significantly curtail access to reproductive services for Americans:

For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion.
It also seeks to cover more employees. For example, in addition to a surgeon and a nurse in an operating room, the rule would extend to "an employee whose task it is to clean the instruments," the draft rule said.

The implications for the nation's 4,800 hospitals, 234,000 doctor's offices, 58,000 pharmacies and thousands of other "entities" receiving federal funds are dramatic and draconian. As the American College of Obstetrics and Gynecology detailed, the new regulation would threaten the well-being, and in some cases the lives, of American women. In the future, these examples of withheld emergency health care services cited by ACOG would become frighteningly commonplace:

In Texas, a pharmacist rejected a rape victim's prescription for emergency contraception. In Virginia, a 42-year-old mother of two became pregnant after being refused emergency contraception. In California, a physician refused to perform artificial insemination for a lesbian couple. (In August, the California Supreme Court ruled that this refusal amounted to illegal discrimination based on sexual orientation.) And in Nebraska, a 19-year-old with a life-threatening embolism was refused an early abortion at a religiously affiliated hospital.

But while the American Medical Association and the American College of Obstetrics and Gynecology stress that a "patient's well-being must be paramount" in seeking to limit so-called "conscientious refusals," groups like the U.S. Conference of Catholic Bishops and the Christian Medical Association see the proposed rule as broadly extending well beyond abortion. As Dr. David Stevens, president of CMA, put it:

"The real battle line is the morning-after pill. This prevents the embryo from implanting. This involves moral complicity. Doctors should not be required to dispense a medication they have a moral objection to."

As Dr. Stevens suggests, the Bush administration and its allies on the religious right are now fighting by other means the war against emergency contraception like Plan B. Having finally lost in 2006 the battle to keep over-the-counter Plan B out of the hands of American women, the White House is trying another tack. And just as in the case of the FDA's stonewalling, Senators Hillary Clinton (D-NY) and Patty Murray (D-WA) plan to fight back.
Sadly, that could take some time. As President Obama prepares to take over in Washington, undoing George Bush's regulatory assault on women's reproductive rights won't be quick or easy. If the rule is issued before December 20th, it could take months for the administrative law process and public comment period to be concluded by President Obama. As a result, health care advocates led by Murray and Clinton will likely look to action by Congress early next year. (When it comes to Bush's faith-based initiative, Obama in July announced his intent to expand the program but with prohibitions on workplace discrimination by recipients of federal funding.)
This last gasp attack on access to reproductive services is just one of the parting gifts from George W. Bush. Of course, it could have been much worse. He could have been passing the baton to President John McCain.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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