The Trump Administration has made it clear that it will do whatever it can in order to allow personal beliefs to dictate patient access to health care. Most recently, they created a new office for discrimination within the Department of Health and Human Services and proposed a new rule allowing all kinds of individuals and entities to use their beliefs to block patients from getting the care they need. But one strategy of the Trump Administration that hasn’t received much focus – but has potentially long-lasting harm – is nominating to federal courts individuals who hold views that prioritize religious beliefs above patient care.
One such nominee is Kyle Duncan, nominated to sit on the Fifth Circuit Court of Appeals. Duncan is someone who has spent much of his career supporting attempts to allow religious beliefs to override access to health care. For example, Duncan–
- Played a leading role in the Hobby Lobby case, arguing a boss’s religious beliefs should override a woman’s right to insurance coverage of birth control. In that case, he argued that the Court should ignore any impact on employees of losing birth control coverage. When the Supreme Court decided that case, every Justice agreed that the impact on employees must be considered.
- After his work in Hobby Lobby, he then went on to write an amicus brief on behalf of a non-profit organization that wanted to refuse to comply with the requirement to cover birth control. In that case, he argued against any work around that ensured employees got birth control coverage through their regular insurance plan, even when the employer got to opt out.
- Wrote a brief arguing pharmacies must be allowed to refuse to fill birth control prescriptions.
Duncan’s record demonstrates his interest in pushing forward legal arguments that protect the use of religious beliefs to determine patient care, no matter the harm on individuals. Not only is this troubling at any time, but it is especially troubling when the Trump Administration is actively pushing forward laws and policies – like the harmful and discriminatory rules allowing employers to opt out of birth control coverage – that might come before him as a judge. This raises questions about whether Duncan would be able to consider such issues that come before him impartially. And also, as a judge, Duncan would have the power to shape what the law means, and whether the law will give more rights to those who claim the right to discriminate under the guise of “religious liberty.” Given Duncan’s record, that is a very disturbing thought.
The courts have already proven themselves an important line of defense in the face of unrelenting unconstitutional and illegal attempts by the Trump Administration. We need judges who will uphold our constitutional protections and impartially consider the many ways the Administration is bending the law to promote policies that put providers’ religious beliefs ahead of patient care.