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No, Religious Liberty Won’t Yank Health Care From Trans And Post-Abortive People


There’s a blurry line between ideological slant and deception. Amidst political volatility and “fake news” controversy, it’s common for competing voices to accuse one another of all manner of deceit.

This isn’t always fair. It’s natural and healthy for us to see the world differently. It’s no sin for a right-leaning publication to lean right, or a liberal one left. Two people can look at the exact same data on abortion, or gun violence, or health care, and still come to different conclusions. Sometimes well-meaning people have good-faith disagreements over hard problems.

Other times, people just lie. Nowhere do egregious distortions abound more than when liberal news outlets start “reporting” on issues of religious freedom.

U.S. District Court Judge Reed O’Connor recently ruled an injunction against a regulation in the Affordable Care Act (ACA) that redefined sex discrimination to include “gender identity” and “termination of pregnancy.” This regulation could have been used to require religiously affiliated health-care providers “to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment,” as stated in the decision. O’Connor rightly ruled that this represented statutory overreach and a violation of religious freedom laws, so struck it down.

Left-leaning news sites painted a different picture. In constructing a terrifying straw-man, Slate ran the headline “Judge: Doctors Have ‘Religious Freedom’ to Refuse to Treat Trans Patients, Women Who’ve Had Abortions.” quickly followed suit. The level of distortion here is maddening, but also revealing.

What They Said Happened

By Mark Joseph Stern’s Slate account, the ACA regulation in question merely “forbade doctors from discriminating against transgender patients or women who’ve previously had abortions.” He mocks O’Connor for defining “sex” as a binary biological reality. He asserts: “O’Connor held that treating transgender patients—and even insuring transgender patients—‘substantially burdens’ insurance companies and hospitals’ ‘exercise of religion.’”

He goes on to state: “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.”

Then finishes strong with the unhinged conclusion: “Indeed, by the terms of his ruling, the government can’t require doctors and insurance companies to treat or cover anything they believe to be ‘evil.’”

Not to be outdone, Maria Solis over at opened her shorter analysis the following day with the bold claim: “On Saturday, a United States district judge ruled that doctors may turn away women who have had abortions and transgender patients on the basis of religious freedom.”

She later brings it in for a refrain: “O’Connor also justified his ruling by claiming that individual doctors’ refusal to treat trans patients or women who have had abortions does not limit their access to health care and coverage.”

The story they tell is an ugly one. These doctors with crosses on their walls and hatred in their hearts are seeking to leave injured and suffering transgender patients and women with abortion histories out in the cold. Are you a self-identified man with two breasts and a broken leg? Don’t come to Franciscan. Had an abortion 10 years ago, and now you need a root canal? Sorry, the Christian Medical and Dental Society can’t help you. O’Connor’s ruling has left the bigots emboldened, and hastened our inevitable descent into full-blown theocracy. At least, a reader could be forgiven for thinking as much.

What Really Happened

After reading these accounts, one might find the actual text of O’Connor’s order rather anticlimactic. The first thing they might notice is that the decision is clearly, unmistakably focused on protecting religious objectors from performing or supporting sex changes and abortions. That’s it. Throughout the document, this point is stressed like a hammer to a nail.

Here: “Plaintiffs argue the new regulation will require them to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment.” And here: “Plaintiffs argue that Defendants define prohibited sex discrimination to include: (1) refusing to provide abortion-related services and health insurance coverage of abortion-related services; and (2) refusing to provide transition-related services and health insurance coverage of transition-related services.”

Here: “Plaintiffs claim the Rule pressures covered entities to perform and provide insurance coverage for abortion- and transition-related procedures.” Here: “Franciscan does not believe transition-related procedures are ever in the best interests of its patients and providing or covering any transition- related service would violate their deeply held religious beliefs.” Also here: “Private Plaintiffs are concerned that their blanket exclusion of abortion or elective sterilization services and coverage of such procedures puts them at risk of losing federal funding and facing civil liability.” Also in a dozen other places, but you get the picture.

What you won’t find anywhere in the order’s 46 pages is any mention, or even the slightest hint of a suggestion, that the ruling is intended to allow doctors to refuse treatment to patients for no other reason than because they identify as trans or have had abortions. In other words, O’Connor doesn’t say what Slate and say he said.

It’s curious that Stern and Solis read something into the opinion that it didn’t say, while completely ignoring what it did say, over and over and over again. It’s almost as if they approached the topic with the pre-formed narrative, and applied the facts disingenuously to fit that narrative. I shudder to think such a thing.

Religious medical professionals have more to fear from the ACA than trans patients and women who have had abortions do from religious medical professionals.

Now, the writers use one small pebble of fact as the whole foundation for their claims. It’s true that the ruling does remove extra legal protections for transgender patients and women with past abortions. It could, therefore, be theoretically interpreted to allow blanket discrimination against them.

But it’s quite clear this isn’t what O’Connor intended, and Stern and Solis offer no evidence that the plaintiffs in the case (or anybody, anywhere) intend to discriminate in this way. It would be irrational, it would ruin a doctor’s reputation, and it wouldn’t make sense in the context of any of our country’s major religious traditions.

Also, as far as I’m aware there are no legal protections for the balding, the green-eyed, or lovers of death metal. Why aren’t we doing more to protect these vulnerable groups of people? Because they don’t need it. If there are a few doctors out there with bizarre prejudices, we as a people can find a way to handle them without the aid of a bureaucratic behemoth. O’Connor rightly recognizes that religious medical professionals have more to fear from the ACA than trans patients and women who have had abortions do from religious medical professionals.

Attack of the Straw Men

Of course, this is only the latest in a series of similar incidents. I remember two years being alarmed to learn that a “Bill would let Michigan doctors, EMTs refuse to treat gay patients.” I’ve written on the fictitious claim that “TN Lawmakers Pass Religious Freedom Bill Allowing Therapists to Refuse LGBT People Service.” And who could forget the uproar in Indiana back in 2015, when we were told a new era of Jim Crow was rising in the wake of a relatively modest religious freedom law? Again and again, these absurdities are debunked, only to resurface a few months later.

The more you look, the harder it becomes to discern the David and the Goliath here.

It’s normal for political debates to become heated, even ugly. But the level of deception, and pure hysterics, employed on the progressive side of religious freedom debates is in a class of its own. It’s worth analyzing why.

Part of it, of course, is simply that they can get away with it. The millennial generation, the most progressive and educated in history, is sadly ignorant on matters of law, logic, and religion. They’ve been long trained to equate morality with upholding a narrowly-defined diversity. “This hurts gays and women” is all the convincing the bulk of them need to take up torches and pitchforks.

Indeed, it’s necessary to whip people up into an emotional frenzy and keep them there, lest the flaws in their cause be exposed under the cold light of reason.

There’s little evidence that business discrimination against LGBT people is a problem serious enough to warrant major government intervention. I reason thusly: if the hypothetical refusal of an Indiana pizza joint to cater a fictional same-sex wedding was sufficient to spark a national outrage, then any actual outright refusal to serve gays would surely have made it onto my radar. I have enough faith in my liberal friends to think they would have sniffed out any such incident and brought it to my attention. To date, this hasn’t happened. (To be clear, I don’t mean to suggest sexual prejudice doesn’t exist or shouldn’t be combated. I just don’t think it often comes in the form of “We don’t serve your kind here.”)

If we stop to think and talk about issues of religious freedom in an honest and serious way, simplistic narratives don’t hold up anymore.

In the second, Christian florists and bakers, heroic fire chiefs, and nuns who serve the infirm and aged simply don’t make very good villains. Nor do slighted, litigious same-sex couples and power-wielding bureaucrats make compelling heroes. The more you look, the harder it becomes to discern the David and the Goliath here.

Lastly, if we stop to think and talk about issues of religious freedom in an honest and serious way, simplistic narratives don’t hold up anymore. We’re confronted with deeper commitments, like the importance of belief, free speech, long-standing tradition, and freedom of conscience. The hypocrisy of hounding believers in the name of “tolerance” and “antidiscrimination” will become unsustainable.

People might start to question whether, by driving the religious out of the public square, they’re living by the tenets of their “COEXIST” bumper stickers. Even after such deliberation, some may still carry on the progressive crusade. But others won’t, and the movement will lose the fire of its self-righteous fury.

Thus, honest conversation can’t be allowed to happen. What the cause lacks in substance it has to make up for in momentum, and that means keeping the dial always at 11. Never mind Obergefell. Forget the fact that prejudiced attitudes have declined miraculously in the past 50 years. Homophobic paramedics are letting gays bleed to death! Trans patients are being thrown out of ERs! Women with abortion histories can’t get their life-saving prescriptions filled! Jim Crow is on the rise! No time for questions!

Despite this tiresome round of cry-wolf, O’Connor’s ruling gives us cause for cautious optimism. Religious health care providers can continue to operate unmolested, temporarily at least. This is the latest in a series of court decisions that suggests the judiciary hasn’t fully succumbed to the new gender orthodoxy. The histrionics are confined to the web, while the voices of reason sit on the bench. For the moment, everything is in its right place.