Religious Exemptions and the New Non-Culture Wars

I’ve been writing over the past couple of weeks about a split between Republican evangelicals (and, it must be added, other conservative Christians) over whether to wage culture war battles over restoration of a “Christian nation” or to shift tactics to focus on religious freedom issues. While many of these conflicts over religious exemptions from laws protecting women’s and LGBT rights take place at the state level, we are now seeing two federal-level conflicts. One has been in the headlines, and the other is more under the radar. Both may provide an opening for religious conservatives to pressure Republican presidential candidates to state their positions on religious exemptions.

The current impasse over the sex trafficking bill in the Senate is giving a hint of Republican expectations on this issue, albeit in a bizarre way. The Republican leadership is holding up confirmation hearings for Attorney General nominee Loretta Lynch, because Democrats are fillibustering a bill to assist human trafficking victims over an anti-abortion provision slipped in by Republicans. Reportedly, an aide to Sen. Amy Klobuchar (D-MN), a supporter of the bill, knew about the anti-abortion provision the Republicans added, but failed to inform her boss.

The provision, purportedly just a routine reiteration of the Hyde Amendment in the anti-trafficking bill, addresses religious objections elliptically–and not very persuasively. The Hyde Amendment, after all, is designed to block the use of taxpayer money to fund abortions for poor women, based on the argument that religious objectors should not have to pay for something they believe to be immoral.

As Laura Bassett points out though, while both the Hyde Amendment and this provision include a rape exception, this provision would mean that “child sex trafficking survivors who have become pregnant from rape would be forced to jump through numerous extra legal and administrative hoops in order to prove they were raped so they can use their victims’ compensation funds to help pay for their abortion.” What’s more, she adds, these young victims often have been raped multiple times daily, and have higher pregnancy rates than other rape victims.

But the abortion restriction in the sex trafficking bill doesn’t even purport to protect anyone’s religious freedom. It doesn’t shield taxpayer money from covering abortions. Instead, it ensures that restitution money that sex traffickers pay into a fund won’t be used to pay for the abortions of the women they have abused and exploited. It rests, then, on a far more tenuous (and only implicitly made) argument that religious objectors shouldn’t be complicit in any possible way in anyone’s access to abortion.

While the Senate maneuvers are clearly an effort to muck up the Lynch nomination, they do look very much like they are imperiling a bill that goes to the heart of one of millennial evangelicals’ top post-culture war issues: fighting sex trafficking. It’s the culture war tucked away in one of the signature issues of the supposedly post-culture war evangelical milieu.

The less visible battle is playing out at the administrative level, and it is of the sort that seems to be very likely to make its way into candidate discussions of religious freedom, should the candidates go down that path. The Department of Health and Human Services’ Office of Refugee Resettlement (ORR) has proposed an interim final rule that would require its contractors who serve unaccompanied, undocumented children (many of whom are also trafficking victims) to provide victims of sex abuse with “timely, unimpeded access to emergency medical treatment, crisis intervention services, emergency contraception, and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care, where appropriate under medical or mental health professional standards.”

As I reported two years ago, the unprecedented surge in unaccompanied undocumented children crossing the border has accelerated the need for services providing for their care. Many of the agencies HHS contracts with to provide these services are faith-based providers. A coalition of them has objected to the rule, including the National Association of Evangelicals, World Relief, World Vision, and the United States Conference of Catholic Bishops. In a letter, they protest that the interim final rule “falls short of adequately protecting existing and prospective grantees, contractors, subgrantees and subcontractors with religious or moral objections to providing, facilitating the provision of, providing information about, or referring or arranging for, items or procedures to which such organizations have a religious or moral objection.”

HHS makes note of these objections and says “ORR is committed to providing resources and referrals for the full range of legally permissible services to UCs who need them, helping to facilitate access to these options, and doing so in a timely fashion and in a manner that respects the diverse religious and cultural backgrounds of UCs [unaccompanied children].” It strives to accommodate religious objections by suggesting that objectors serve as subcontractors, apply in a consortium, or to notify the agency of their objections so the agency can refer the UC to another provider. The letter from the faith-based providers describes these accommodations as “inadequate,” and adds that the new proposed requirements may violate the Religious Freedom Restoration Act.

There’s a history here: when the Obama administration declined to renew a USCCB contract to serve trafficking victims because the USCCB objected to a contractual requirement to refer victims to a full range of reproductive health services, Republicans held hearings to gin up claims the administration was anti-Catholic. Later, a federal court ruled religiously-based restrictions in such contracts to be an unconstitutional violation of the Establishment Clause, but the decision was found moot because the contract had not been renewed.

According to sworn testimony in that lawsuit, the United States Conference of Catholic Bishops said HHS had granted it exemptions from similar language. The new interim rule, then, seeks eliminate that negotiated exemption, and to codify the requirements for a full range of services. That codification would prevent “taxpayer money being used to harm others,” according to the American Civil Liberty Union’s Deputy Legal Director Louise Melling. In other words, the taxpayer money argument goes both ways: taxpayers who support these minors’ access to a full range of health care object to their money being used to thwart that access.

The new interim final rule will provoke a revisiting of these old disputes, and likely a further politicization of the issue. And just in time for Republican presidential candidates to make a lot of noise that, unlike Obama, their presidencies won’t wage a war on religion.