The Jurisprudence of the Body: Conscience Rights in the Use of the Sword, Scalpel, and Syringe

By Butterfield, Justin E.; Taub, Stephanie N. | Texas Review of Law & Politics, Spring 2017 | Go to article overview

The Jurisprudence of the Body: Conscience Rights in the Use of the Sword, Scalpel, and Syringe


Butterfield, Justin E., Taub, Stephanie N., Texas Review of Law & Politics


INTRODUCTION

Because humans are embodied beings, all religions feature teachings, doctrines, or dogmas relevant to the human body and its manifestation in the male or female form.1 For example, John Paul II's Theology of the Body lectures explain in exhaustive detail the catholic view that humans are created male or female and are therefore ordered to the "one flesh" conjugal union signified in the sacrament of marriage.2 In a similar vein, Orthodox Jewish scholars read Levitical and Talmudic texts to proscribe non-marital male-female touching (negiah), prescribe separate male and female seating sections in the synagogue (mechitza), or prohibit male-female seclusion prior to marriage (yichud).3 Sunni and Shia Muslims famously disagree on eschatology but basically agree on the sex-specific, full-body washing rituals for the living (ghusl), the dead (ghusl mayyit), and those who touch the dead (ghusl mase mayyit).4 Because these beliefs are integral to millennia-old religions and closely correlate to First Amendment rights enshrined in the Constitution, American policy makers have a long track record of accommodating idiosyncratic "theologies of the body"-especially in military and medical cases where religious persons sincerely disagree about what may be done with or to the human body.5

By expressly denying any religious exemption, the Department of Health and Human Services (HHS) Transgender Mandate6 represents an unprincipled and unnecessary departure from the venerable American tradition of accommodating religious adherents. The HHS Transgender Mandate was promulgated pursuant to Section 1557 of the Affordable Care Act (ACA) and administratively redefines the longstanding protected class "sex" to include three new categories not listed in the original federal nondiscrimination statutes: (1) "gender identity," (2) "sex stereotyping," and (3) "termination of pregnancy. "7 These three categories are broadly defined, thereby maximizing the potential for liability or litigation:

* "Gender identity" includes "an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female."8

* "Sex stereotyping" includes the "belief that gender can only be binary" or "the expectation that individuals will consistently identify with only one gender. "9

* "Termination of pregnancy" is not defined, and the relevant clause omits the abortion exception appearing in the Pregnancy Discrimination Act.10

Consequently, medical providers and practitioners may be required to cover, perform, or facilitate sex-reassignment procedures11 and whatever abortion services may fall within the HHS's administrative reading of the words "termination of pregnancy" in direct contravention of their longstanding religious beliefs.12 These requirements are on a collision course with millennia-old theologies of the body-for example, the Abrahamic religions that share the Book of Genesis and adhere to the imago dei view of the human body: "So God created mankind in his own image, in the image of God he created them; male and female he created them."13

Despite numerous public comments seeking an exemption for religious providers and religious practitioners,14 HHS did not provide a safe harbor for Roman Catholic, Southern Baptist, Orthodox Jewish, Sunni Muslim, or other religious physicians who cannot use their scalpels to make female what God created male, cannot use their syringes to feminize biological males or masculinize biological females,15 and cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children. Instead, the HHS Transgender Mandate advises religious dissenters that they can always sue the federal government under the Religious Freedom Restoration Act (RFRA).16 Having spent millions of dollars and countless attorney hours litigating the Hobby Lobby17 and Zubik18 cases to the Supreme Court, the HHS responded to the newest religious conscientious objector with a virtual "So sue me. …

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