While nothing in the bill specifically exempts medical personnel from providing care to gay patients, this is one of the scenarios that opponents have discussed as what could happen if the bill passes.
The bill isn’t a new concept; it is modeled after a federal law that has been upheld by the U.S. Supreme Court. That law, known as the Religious Freedom Restoration Act (RFRA), passed Congress with overwhelming bipartisan support in 1993; it had been sponsored in the House by Congressman Chuck Schumer, a Democrat who is now in the Senate’s Democratic leadership. It passed 97-3 and was signed into law by President Bill Clinton.
A 1997 Supreme Court case held that the bill could not be applied to states, resulting in about 19 states passing their own RFRAs. These laws, at both the state and federal levels, articulate a three-pronged test for courts to apply when adjudicating claims that a law has violated an individual’s First Amendment rights to religious freedom. The RFRA’s balancing test allows a person’s exercise of religion to be “substantially burdened” only if the law achieves a “compelling government interest’ in the “least restrictive means of furthering that compelling governmental interest.”
Supporters of the Michigan legislation argue that the federal law has been in place since 1993 and that courts have taken cases on an individual basis, using the balancing test. Courts have gone both ways in their rulings, sometimes supporting religious exemptions and other times refusing to do so.
The person invoking the RFRA would have to prove that they had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that belief. And the government, or the defendant in the lawsuit, would have to show that compliance with the law was necessary to serve a compelling government interest.
According to Brooke Tucker, staff attorney at the American Civil Liberties Union (ACLU) of Michigan, the RFRA could allow forms of discrimination, giving businesses and landlords the opportunity to contest decisions in court, costing time and money to individuals who may have been discriminated against.
The question has now arisen as to whether the RFRA applies to civil suits. Arizona recently passed a bill amending its RFRA, indicating that the need for it to do so resulted from a New Mexico case, Elane Photography v. Vanessa Willock, in which the New Mexico Supreme Court unanimously ruled against a private photography business owned by a Christian who refused to take photographs at a same-sex commitment ceremony under the state’s Human Rights Act, because it offered its services to the public.1 The New Mexico court also ruled that the state’s RFRA was inapplicable in a suit between private parties. The decision came only one day after a New Mexico county began issuing same sex marriage licenses. Arizona, interestingly, does not prohibit discrimination based on sexual orientation at public accommodations such as restaurants and hotels. Such discrimination rarely occurs, but it is concerning to know that the law may allow for it.
The questions remain: can doctors or emergency medical personnel refuse lifesaving assistance to a gay person because of their religious beliefs? Essentially, the RFRA laws state that people don’t have to perform an act that would violate their sincerely held religious beliefs. This scenario would arise if a medical provider refused to treat a patient on religious grounds and challenged the law requiring them to do so, asserting the RFRA as a defense.
The employment issues that can result from such laws are far reaching and extremely difficult to navigate. Can an EMS employer question a potential employee about religious beliefs that would interfere with the performance of emergency services? Would an agency be held legally responsible for an EMT who refused to treat a gay patient? Can a pharmacist refuse to fill a prescription for birth control pills or HIV medication? Can a Catholic-owned hospital refuse to provide a legal abortion? And the biggest question: Do people whose religious beliefs could interfere with their ability to treat all patients belong in the medical field, particularly in EMS?