Liberals hope, and conservatives fear, that the Biden Administration will transform the nation’s values and public policies into those of “California.” As a recent story in the Los Angeles Times put it, “California is emerging as the de facto policy think tank of the Biden-Harris administration.” If that’s right, the next four years bode ill for the free exercise of religion.
California’s hostility to religious freedom has resulted in concerted efforts in the Golden State to sacrifice this first liberty on the altar of secular cultural imperatives. Consider a few recent examples.
First, the courts: In my opinion, the most important ongoing religious freedom case in the United States is Minton v. Dignity Health. When the administrators of Sacramento's Mercy San Juan Medical Center, a Catholic hospital in the Dignity Health chain, were informed that a patient's planned hysterectomy was for transitioning, the procedure was canceled as a violation of the health directives that Catholic hospitals are required to follow. First, the surgery would have excised a healthy organ. Second, the hysterectomy would have sterilized the patient, which Catholic moral teaching does not allow unless necessary to treat a serious pathology.
These policies are not aimed at transgendered patients but apply universally regardless of the circumstances. But no matter. Dignity Health was sued in 2019 for discriminating based on sex. The trial court dismissed. But the Court of Appeals has reinstated the case, ruling that the refusal to remove the patient's healthy uterus was a violation of California’s anti-discrimination law requiring medical facilities “to provide full and equal access to medical procedures without regard to gender.”
If the case goes to trial and a jury awards large damages, it could become impossible for California Catholic hospitals to operate in a manner consistent with Church doctrine. At the very least, coercive legal actions against Catholic hospitals would accelerate—and not just with regard to transgender issues, but also in cases of abortion, sterilization, and assisted suicide. Of course, that is the point.
Meanwhile, two bills have just been filed that would substantially dismantle medical conscience rights in California. The first seeks to undermine the financial viability of Catholic hospitals. Under current law, University of California Health contracts with Catholic hospitals to provide care for affiliated patients and training for medical students, who are prohibited from violating Church teaching when serving in Catholic facilities.
S.B. 379 would wreck that productive comity by prohibiting UC Health from entering into contracts with hospitals that have “policy-based restrictions on care . . . that preclude health care practitioners at that health facility from providing types of care that the health care practitioners are licensed to provide and that the health facility has the equipment and facilities to provide.” This would force Catholic and other religiously affiliated hospitals that want to contract with UC Health to permit abortion, assisted suicide, the prescribing of contraceptives, transgender transition surgeries, and sterilization on the premises.
The legislation illustrates how ideology trumps all other considerations in progressive politics. Catholic hospitals are a major provider of health services for poor Californians. If this proposal becomes law, at least some Catholic hospitals will cease affiliation with UC Health—to the detriment of needy patients that the system serves.
Another bill seeks to destroy medical conscience rights regarding assisted suicide. In order to pass the bill that legalized assisted suicide in California, sponsors had to promise that dissenting doctors would be allowed to refuse all participation—leading the California Medical Association to change its position on assisted suicide from “opposed” to “neutral,” a key step in enacting the bill. But S.B. 380 would break that promise by requiring all doctors in California to be complicit, either by doing the deed or referring their patients upon request to a doctor known to be willing to lethally prescribe. If the bill becomes law, refusing to refer would “be considered a failure to obtain informed consent for subsequent medical treatments.” In other words, refusing to procure an assisted suicide doctor on behalf of a patient could result in civil liability and/or professional discipline.
What does this matter outside the Golden State? Unfortunately, perhaps a lot. California is often a bellwether pointing other progressive states toward new policy directions in which to move the culture. Moreover, successful activism there often leads to similar actions being taken elsewhere. Indeed, the Dignity Health case may have been an inspiration for a federal case filed in Maryland against a Catholic hospital that refused to perform a transgender hysterectomy. Ironically, that case is predicated on the First Amendment’s Establishment Clause, the theory being that since the hospital receives federal funds, refusing the surgery based on religious belief is akin to the government instituting a dogma.
California politicians will also exert great influence at the federal level in the new administration. Vice President Kamala Harris was the state’s attorney general before becoming a United States senator. She has backed policies that impinged on religious liberty throughout her career. For example, she sponsored a bill that would have gutted the Religious Freedom Restoration Act (which, not coincidentally, was recently the basis for a North Dakota federal judge's ruling that Catholic hospitals need not perform transgender surgeries).
Xavier Becerra, Harris’s replacement as California attorney general and now President Biden’s nominee for Secretary of Health and Human Services, may be even more antithetical to religious freedom in the social context. He sued to prevent the Trump administration from relieving the Little Sisters of the Poor from the Affordable Care Act’s contraception mandate. He also has opined that the religious rights of institutions are not as strong as those of individuals.
So the signs are vivid for those with eyes to see. California is the leading edge of attacks on the free exercise of religion—both for individuals and institutions—toward the end of establishing a radical secular agenda in law and practice throughout the country. Those of us who believe that the first liberty is essential to the maintenance of a truly free society had better gird our loins. We are in for a bumpy ride.
Wesley J. Smith is a senior fellow at the Discovery Institute. His latest book is Culture of Death: The Age of “Do Harm” Medicine.
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