Catholic health care in this country has long had a conflicted relationship with the health-care system at large. Tentative steps toward compromise have been stalled by post-Dobbs changes in abortion access and continued fights over transgender care. Most recently, as part of an ongoing effort to realign federal regulations with the Supreme Court’s 2020 decision that discrimination against transgender people is a form of sex discrimination, the Biden administration proposed a new rule to expand nondiscrimination protections in health care for transgender people. The U.S. Conference of Catholic Bishops opposes it.
The bishops believe that such rules violate the Ethical and Religious Directives for Catholic Health Care Services (ERDs), which lay out “a theological basis for the Catholic health care ministry.” Their position hinges on two arguments: (1) Catholic opposition to performing certain procedures is morally justified because the procedures do not constitute health care, and the refusal to perform them is not discriminatory; and (2) even if one disagrees with Catholic opposition to these procedures, forcing Catholic hospitals and medical professionals to perform them and thus violate their consciences should be opposed because it would pose a danger to conscience rights for all.
However, there are problems with this approach, which is unlikely to withstand the combined pressures of weakening Catholic political power, rising political and cultural polarization, and growing difficulty in accessing health care of all kinds, especially the kind not permitted under ERDs. Catholic health care thus faces a challenging future. Those who want Catholic institutions to remain substantively Catholic and to provide medical care within the constraints of Catholic medical ethics must articulate a more robust definition of pluralism and conscience rights. Here are four considerations for articulating that vision.
First, some Catholic health-care policies do discriminate against transgender people. Many in Catholic health care argue that criticism over supposed discrimination against transgender patients is misplaced: Catholic hospitals will not perform certain procedures for anyone of any sex or gender.
That’s certainly true of some procedures, like vaginoplasties or tubal ligations. But the U.S. Health and Human Services anti-discrimination regulations are not referring to those. Doctors can choose the focus of their practice, and no law is going to force them to perform a procedure they don’t have the skills and experience to perform. Instead, what is explicitly mentioned are hysterectomies, which Catholic hospitals can and do perform, in line with the Catholic ERDs. It’s not true that Catholic hospitals decline to perform this specific procedure for everyone and for every reason. They perform this procedure for everyone with every medical diagnosis except for gender dysphoria. And this is the core of the disagreement.
The only reason to perform a hysterectomy on a cisgender woman with endometriosis but not on a transgender man with gender dysphoria is if one has decided that gender dysphoria—a medical condition recognized in the DSM-5 and covered by insurance—is different from other medical conditions. That is a permissible distinction to draw in Catholic ethics. But legally, treating some diagnoses recognized by the broader medical community differently from others based on the gender associated with those diagnoses is the very definition of sex discrimination. “We wouldn’t perform that procedure for anyone with gender dysphoria” falls a little flat as a defense when the only people with that diagnosis are, by definition, transgender. Legally and logically, Catholic hospitals’ refusal to perform these hysterectomies discriminates against transgender people.
Does this mean that Catholic practitioners and providers should be forced to violate their consciences and sincere religious beliefs? No. But it means Catholic hospitals are going to need an affirmative carve-out from nondiscrimination law. They need to convince lawmakers, and the voting public, that Catholic hospitals deserve an exception. It’s no longer good enough, if it ever was, to argue that Catholic hospitals don’t discriminate. Instead, Catholic hospitals need to argue that allowing them to remain substantively Catholic is good for American pluralism—and, crucially, that Catholic conscience rights don’t have to interfere with anybody else’s rights.