Defending Conscience Rights at Hacksaw Ridge and in the HHS Cases

Today, American moviegoers will flock to theatres to view Mel Gibson’s Hacksaw Ridge. In vivid detail, the movie depicts the heroism of Private Desmond Doss, a Seventh-day Adventist who was willing to serve in the infantry but unwilling to kill another human being or even carry a weapon—a principled but unpopular stance in the United States Army of World War II.

Doss endured taunts and torment during basic training but earned the lasting respect of his Army peers on the field of battle. During the bloodiest hours in the Battle of Okinawa, Doss dodged artillery, mortar, and machine-gun fire to rescue seventy-five wounded soldiers single-handedly. He was awarded the Medal of Honor, becoming the first conscientious objector to receive our Nation’s highest military decoration.

Director Mel Gibson unveiled Hacksaw Ridge at the Venice International Film Festival and reportedly received a ten-minute standing ovation from the glitterati in attendance. The creative class artists, moguls, and critics who jeered The Passion of the Christ are now cheering Hacksaw Ridge, a movie about a man who exercised his religion while performing a government job and being paid a government salary.

In cheering Hacksaw Ridge, the creative class has rediscovered (or inadvertently stumbled into) a longstanding American principle that once united the left and right sides of the ideological spectrum: To the greatest extent possible, the government should provide particularized and belief-specific conscience protections for religious persons who are willing to serve their country but unwilling to violate their faith.

This principle is most needed when the government disfavors a particular religious belief and therefore thinks it has legitimate reasons to force conscientious objectors to use the sword, the scalpel, or the syringe in violation of their religious beliefs. Although the film’s supporters may not realize it, the challenges posed by Hacksaw Ridge are not isolated to WWII-era America. We’re still dealing with them today—but now, the rights of religious believers are under attack.

Conscientious Objectors in the American Tradition

Earlier this year, the Supreme Court declined to grant a writ of certiorari in Stormans, Inc. v. Wiesman, a case involving Christian pharmacists who sought an exemption from a Washington state law that required them to dispense abortifacient drugs in violation of their religious beliefs. Justice Alito penned a stinging dissent: “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

My law firm, First Liberty Institute, filed an amicus brief in support of the Stormans pharmacists. Signed by forty-three Members of Congress, the brief recounts the chronology of conscience rights in America in order to make a simple point: From the colonial period through the twenty-first century, federal, state, and territorial governments have an unbroken tradition of protecting conscientious objectors who cannot abide the government’s mandate to kill, cut, or medicate another human being.

The Appendix to the brief lists over 160 laws protecting conscience rights in the hardest of hard cases: abortion, assisted suicide, capital punishment, contraception, euthanasia, fertility treatments, military service, and sterilization. This exhaustive listing proves that exceptions are actually quite common, especially in military and medical cases where persons of goodwill sincerely disagree about what may be done with or to the human body.

Moreover, the Appendix illustrates that laws protecting “the sacred rights of conscience” cover a broad spectrum of religious beliefs, ranging from the political Left to the Right. The pacifist Quaker, anti–death penalty Catholic, and pro-life Evangelical are all protected.

This venerable American tradition originated in the Peace Church immigrants who refused to “bear arms” in the colonial militias—Quakers, Mennonites, Brethren—and continued to develop imperfectly and intermittently through successive waves of immigrants, wars, and controversies that pitted the conscientious objector against the government.

Through three centuries of practice, the nation founded by religious dissenters learned how to protect religious dissenters using particularized and belief-specific conscience provisions. Until now.

The HHS Transgender Mandate

On May 18, 2016, the Department of Health and Human Services (HHS) issued its Final Rule implementing Section 1557 of the Affordable Care Act (ACA). Like previous federal laws, Section 1557 forbids healthcare providers from discriminating against individuals due to their race, color, national origin, sex, age, or disability. Unlike previous federal laws, however, the new Section 1557 rule redefines the protected class “sex” to include three new categories not listed in the original non-discrimination statutes: (1) “gender identity,” (2) “sex stereotyping,” and (3) “termination of pregnancy”—with no express religious exemption or accommodation for conscience rights.

The three new categories are broadly or vaguely defined to maximize liability:

• “Gender identity” includes “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

• “Sex stereotyping” includes the “belief that gender can only be binary” or “the expectation that individuals will consistently identify with only one gender.”

• HHS refused to clarify that “termination of pregnancy” does not encompass a requirement to provide abortions or abortifacient drugs.

All three categories are on a predictable and probable collision course with millennia-old religious beliefs about sex, sexuality, and marriage. This is especially true for Catholic providers who adhere to the Ethical and Religious Directives for Catholic Health Care Services (ERD).

The ERD reflects a Catholic view of the human person that is categorically different than the radical self-definition and sex-actualization codified in Section 1557. The inevitable collision of worldviews is illustrated in three hypotheticals presented in Congressman Joe Pitts’s October 6 letter to HHS Secretary Sylvia Burwell objecting to the new rule:

• If a physician prescribes puberty-blocking medications to treat precocious puberty in children, must she also prescribe puberty-blocking medications to treat gender dysphoria—even if the physician thinks the latter is experimental and ill-advised?

• If a physician performs hysterectomies to treat uterine cancer, must she also perform hysterectomies to treat gender dysphoria—even if the physician has a religious, ethical, or moral objection to performing hysterectomies on otherwise healthy women?

• If a physician performs dilation and evacuation procedures to prevent infection following a miscarriage, must she also perform dilation and evacuation procedures to facilitate abortion—even if the physician has a religious, ethical, or moral objection to abortion?

In the three months since Section 1557 took effect, the ACLU has filed lawsuits against Catholic healthcare providers Dignity Health (California) and Ascension Health (Michigan). In both cases, plaintiffs cite Section 1557 as the basis for forcing Catholic providers to cover sex-reassignment and sterilization surgeries that violate the ERD. The ACLU is actively recruiting Section 1557 plaintiffs through an interactive webpage: Health Care Denied.

These litigation threats will continue unless Congress repudiates the false premise that faith-based providers, physicians, and practitioners must forfeit their deepest religious convictions to participate in federally funded programs. That was not the rule at the nation’s founding and it certainly is not the rule today. Congress should add to Section 1557 what HHS conspicuously omitted: particularized conscience protections for medical professionals who cannot use a scalpel or syringe in a manner that violates their faith.

You need not agree with the conscientious objector’s line in the sand to protect his right to serve inside that line. The creative class cheers Private Desmond Doss in Hacksaw Ridge because it venerates his anti-war pacifism, even against the existential threat posed by the Axis powers. Fair enough. But the principle of conscientious objection applies with equal force to the Catholic healthcare providers who are fighting the Section 1557 bureaucracy so they may freely serve the sick, the dying, and the poor.

Matthew Kacsmaryk is deputy general counsel for First Liberty Institute, a national law firm focused exclusively on defending religious freedom.