Issue Analysis & Categorization
Health Care & Wellness
For decades, religious extremists and their lawmaker allies have sought to impose their beliefs through limitations on health care, targeting women’s health care in particular. After the Dobbs v. Jackson Women’s Health Organization (2022) decision, which overturned decades of precedent protecting access to abortion, Christian nationalist lawmakers are now able to fully legislate their regressive agenda, revoking civil rights that Americans had long thought secured.
Negative laws affecting health care generally relate to issues of paramount concern to the religious lobby: abortion, contraception, sterilization, end-of-life care, LGBTQ care, faith healing, and, particularly following the pandemic, vaccination. In addition to compromising the separation of religion and government, these laws and policies can have negative and far-reaching consequences by endangering public health and limiting access to essential health care, especially for groups that already face discrimination or are otherwise vulnerable.
Positive Laws & Policies
Medical Aid-in-Dying Laws
This item indicates state laws that allow a terminally ill, mentally competent adult to request and obtain medication that brings about a peaceful death. Prohibitions on suicide, assisted suicide, and homicide do not apply to individuals taking appropriate actions in accordance with these laws.
protection from conversion therapy
This item indicates laws designed to protect LGBTQ youth from dangerous and discredited conversion therapy. Conversion therapy consists of a variety of harmful practices which falsely claim to change a person’s sexual orientation, gender identity, or gender expression. These laws generally apply through licensing restrictions that prevent licensed medical and mental health providers from conducting conversion therapy on youth under the age of 18. Generally, however, these laws are unable to regulate conversion therapy that is provided by religious clergy because they are usually not licensed providers.
Health Care Transparency Law
This item indicates that the state has a health care transparency law. These laws require hospitals and health facilities to disclose to the public what services they do not offer because of nonmedical reasons, such as their objection to a particular service like abortion, gender-affirming care, sterilization, or end-of-life care. Although these laws do not fully prevent the harm caused by denial of care, they may help to inform patients so that they can obtain appropriate services at hospitals that will provide them. This is critical because most patients are not aware when they are denied care because of the beliefs of a doctor, administrator, or hospital system. Health care transparency laws can be an important first step to raising awareness about denial of care and passing greater protections for patient access to services.
shield laws
In the wake of the Dobbs v. Jackson Women’s Health Organization (2022) decision, which overturned the constitutional right to access abortion, an increasing number of states are severely restricting or banning abortion. These abortion bans may subject doctors and other health professionals who provide abortions to disciplinary action, loss of medical license, or even criminal penalties. Similarly, these laws may subject patients who are seeking or have received an abortion to criminal penalties, and a few states even attempt to criminalize activities that occur in other states. Unfortunately, we are also seeing unrelenting attacks on bodily and medical autonomy when it comes to care for trans people, particularly trans youth. About half of states severely restrict access to necessary health care for trans youth through a similar regime of professional discipline and criminalization of parents and health care providers.
Because of this highly politicized and rapidly worsening environment for accessing health care, a growing number of states have passed legislation to protect health care providers, patients, and their families. These shield laws are meant to enable patients to receive – and doctors to provide – stigmatized health care services in these states, regardless of their restricted status in other jurisdictions. Shield laws differ quite a bit by state, and they are untested. There are important legal and constitutional questions about how conflicting state laws should be resolved. Nevertheless, because these laws have passed in numerous states and represent an important legal development, we felt it was important to report on them, with an emphasis on those elements that have the greatest legal support.
This item indicates shield laws that either provide protection to access reproductive care, including abortion, or health care for trans people. Specifically, we indicate laws that provide confidentiality protections to health care providers, patients, and their families, and laws that maintain the ability of health care professionals who provide these services to practice. For example, confidentiality provisions may include limiting access to contact information, medical records, and other data concerning providers, patients, and their families. The health care provider-focused provisions may, for example, protect providers’ medical licenses and/or ability to access professional insurance from adverse actions originating in other states.
Negative Laws & Policies
Access to Abortion
The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) overturned the protections for access to abortion first established by the Court a half-century ago in Roe v. Wade. Subsequently, states controlled by Christian nationalist lawmakers are now able to eliminate what had previously been considered established constitutional rights. This item examines laws that protect access to abortion and those that severely restrict or ban access to this care.
A number of states have established constitutional or statutory protections for abortion. For example, many states guarantee the right to abortion through their state constitutions, either directly or as part of the right to privacy or equal protection. While some states with constitutional protections for abortion have shown increasing hostility to abortion, those protections remain in place unless the state constitution is modified through a ballot measure or they are undermined by the state courts. In 2022, for example, citizens in Kansas chose not to repeal their constitutional protections for abortion access Similarly, in several states where lawmakers have passed significant restrictions on abortion, advocates are working on ballot measures to pass constitutional protections.
In addition, many states have enacted statutory protections for abortion. The protections can vary quite widely, from those that merely codify the legal protections for abortion provided in Roe v. Wade to more comprehensive approaches. For example, the Reproductive Health Act passed by New York in 2019 decriminalized abortion, allowed qualified providers other than physicians to perform abortions, and reduced restrictions, such as the prohibition on third-trimester abortions (which are typically only done because of health risks resulting from pregnancy or when the fetus is not viable).
Since the Dobbs decision, several states have passed highly restrictive or total bans on abortion. Other states have long had abortion bans that pre-date Roe v. Wade. While Roe rendered those laws inoperative, in at least some states lawmakers refused to repeal these measures, hoping they would once again take effect once Roe was overturned. Now that this has happened, several of these states are taking action to reassert these laws. In addition, a number of states had passed trigger laws that would ban abortion to some extent if Roe were to be overturned. This item indicates state laws that effectively ban all or most abortions through any combination of these various statutes.
Lastly, in 2021, Texas passed SB 8, a unique anti-abortion bill that allows any Texas resident to bring suit against any person (except the pregnant individual) who they suspect performed or “aided or abetted” a prohibited abortion. This created a legal system in which anti-abortion activists can directly sue providers, and the law was so greatly stacked in their favor that abortion providers would likely be subject to ruinous liability. Even before the Dobbs decision, this private enforcement provision greatly limited the availability of abortion in Texas; however, the U.S. Supreme Court threw out challenges to this dangerous new type of enforcement. Since the passage of SB 8 in Texas, a few other states have adopted similar provisions.
Denial of Care Laws
This item indicates laws that allow religious providers (including individual health care workers and institutional providers like hospitals) to refrain from providing various types of health care that conflict with their religious beliefs. Sometimes called “freedom of conscience” laws or “religious refusals,” these provisions may effectively supersede rules of professional ethics, medical best practices, and protections against medical negligence in order to privilege the religious beliefs of providers. These laws most often allow providers to refuse services relating to abortion, contraception, and sterilization, but some states have even broader exemptions, and many of the newer laws are squarely aimed at denying care to LGBTQ patients.
While many denial of care laws echo existing exemptions at the federal level, states may pass laws that apply exemptions more broadly or extend them to additional types of providers, including those that do not receive federal funding. As indicated on each scorecard, many states have laws that allow hospitals to refuse to provide abortion services. States may also have laws that allow at least some health care providers to refuse to provide contraception and/or sterilization services.
Over the past few years, several states have adopted extraordinarily broad denial of care laws that allow refusals of any type of care based on the purported religious, moral, or ethical beliefs of hospitals or providers. Generally, there is no requirement that the provider inform the patient that they are being denied care, and these laws make explicitly clear that providers are not required to refer patients to another provider for the needed care. These laws also apply to health care payers, including health insurance companies and self-insured employers, allowing them to also deny necessary care to patients and employees based on their purported religious, moral, or ethical beliefs. These provisions are ripe for abuse by profit-driven payers seeking another avenue through which to deny coverage for care. Moreover, these laws also have provisions that exempt religious health facilities from the application of the law. In other words, they protect the beliefs of religious hospitals but not the employees of those hospitals who might disagree. And some go further, exempting religious hospitals from any labor law that does not accord with their beliefs. Because of the incredible breadth of these denial of care laws and the fact that they firmly place the religious beliefs of the health facilities above the applicable standards of care or the best interests of patients, we are calling these extreme measures “religion-based health care” laws.
trans youth health care ban
More than half of states have passed laws that target trans youth and their families by preventing them from accessing needed medical care. Displaying a fundamental lack of understanding of trans youth, these bans prevent them from accessing the standards of necessary medical care that are backed by the American Academy of Pediatrics, the American Medical Association, and other leading health authorities. Some of these bills go so far as to threaten parents with prosecution if they help their child receive the medical care recommended by the child’s doctor. When lawmakers prohibit medical care based on their beliefs, they risk the safety of others and undermine their religious freedom.
These laws vary significantly, and some seek to limit the coverage of trans health care through state or private insurance, to increase liability for providing care for trans youth, or even to create criminal liability for doctors and parents who would treat trans youth. This item indicates any significant statutory restriction on access to appropriate health care for trans youth.
child negligence exemptions for faith healing
This item indicates laws that carve holes into state law protections against child negligence or medical neglect, protecting individuals from legal consequences for the far-too-frequent tragic outcomes of faith healing imposed on minors. These exemptions typically protect the faith healers and parents or guardians from any penalties when a child dies or is severely harmed as a result of these practices or when a child is denied appropriate treatment for religious reasons. With these exemptions in place, law enforcement has limited ability to prosecute. State laws may include religious exemptions to civil liability, criminal laws, or both.
Nonmedical Exemptions to Vaccination
Every state has laws that require children to receive various vaccinations prior to attending public school. This item indicates that the state has nonmedical exemptions to those laws, which endanger young people and risk public health. Personal exemptions allow a parent to opt their child out of the vaccination requirement for basically any reason, which is often framed as a philosophy or belief. Religious exemptions allow a parent to opt their child out of the vaccination requirement based on their religious beliefs, which may or may not be associated with their particular denomination. There is evidence that those who seek to avoid vaccination will take advantage of either type of nonmedical exemption, depending on what is available under state law.
