Fact Check

Did Michigan Exempt Emergency Medical Personnel from Treating Gay People?

A controversial law under consideration in Michigan could putatively exempt emergency medical personnel from treating gay people.

Published Dec 6, 2014

 (pixelaway / Shutterstock)
Image Via pixelaway / Shutterstock
Michigan has passed a law exempting emergency medical personnel from treating gay people.
What's True

The Michigan House of Representatives has passed a religious freedom bill that might potentially allow emergency medical personnel to exercise religious objections to treating gay patients.

What's False

The state of Michigan has enacted a bill that specifically provides emergency medical personnel with a blanket exemption from treating gay patients.

On 4 December 2014, the Michigan House of Representatives passed HB 5958, also known as the “Religious Freedom and Restoration Act (or RFRA). That bill (which has not yet become law, as it still needs to be passed by the Michigan Senate and signed by the governor) seeks to "limit governmental action that substantially burdens a person's exercise of religion," which includes "an act or refusal to act, that is substantially motivated by a sincerely held religious belief, whether or not compelled by or central to a system of religious belief."

According to the text of that bill, a person who acted contrary to Michigan law because doing otherwise would burden that person's exercise of religion could use the provisions of the Religious Freedom and Restoration Act as a defense in a criminal or civil case resulting from his actions (or inaction):

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in any judicial or administrative proceeding and obtain appropriate relief, including equitable relief, against government.

A court or tribunal may award all or a portion of the costs of litigation, including reasonable attorney fees, to a person who prevails against government under this section.

Nothing in the RFRA specifically exempts all medical personnel from providing emergency treatment to gay patients; the claim that medical personnel could opt out of providing emergency treatment to gay patients on the grounds of religious objection is one of the hypothetical scenarios opponents have posed as what might come to pass if the RFRA were enacted:

For example, under the Religious Freedom law, a pharmacist could refuse to fill a doctor's prescription for birth control, or HIV medication. An emergency room physician or EMT could refuse service to a gay person in need of immediate treatment. A school teacher could refuse to mentor the children of a same-sex couple, and a DMV clerk could refuse to give a driver's license to a person who is divorced.

While [House Speaker] Jase Bolger insists the bill is meant to protect, say, the Muslim butcher who wants to prepare food in line with halal practices, or the Jewish mother who doesn't want an autopsy performed on her son, civil liberties advocates warn it could be used as a defense for the landlord who wants to evict a gay tenant ... because of sincerely held religious beliefs.

In some of the ugliest scenarios, critics say the measure could allow Catholic-owned hospitals to refuse admittance to people who need a procedure that violates the institution's religious directives, such as a pre-viability pregnancy termination in the case of a miscarriage. In another instance, opponents foresee the bill being cited as a legal defense in domestic violence cases.

The RFRA would not, as has been claimed, "allow anyone to refuse service to anyone and claim their 'religious beliefs' require them to discriminate" and get away with it; the state could still "substantially burden a person's exercise of religion" if it could demonstrate requiring that person to obey the law is both "in furtherance of a compelling governmental interest" and is "the least restrictive means of furthering that compelling governmental interest."

Therefore, it cannot be definitively stated the RFRA would "exempt emergency medical personnel from treating gay people" — that supposition would be the case only if some medical practitioner actually refused to treat a gay patient on religious grounds and challenged the law requiring him to do so by asserting the RFRA as a defense. And even if that scenario came to pass, there is no guarantee the medical practitioner would prevail: the state could demonstrate the government has a "compelling interest" in enforcing a law requiring emergency medical personnel to treat all patients regardless of sexual orientation, and there is no less restrictive means of ensuring emergency patients receive necessary treatment in a timely fashion.

Michigan Speaker of the House Jase Bolger asserted the RFRA would not bring about the scenarios opponents of the bill have been touting:

Bolger denies that his bill would be the "parade of horribles" he's heard. He insists it would simply give people the freedom to practice their faith in public and add another layer of protection to their First Amendment free exercise guarantees.

Additionally, Bolger stressed that the law is meant to exist between an individual and a government action, not between two individuals like, for example, the religious landlord and his gay tenant. The landlord may try to use RFRA as a defense in court for evicting his tenant based on sexual orientation, but that doesn't mean he'd win, Bolger explained.

However, according to Brooke Tucker, staff attorney at the ACLU of Michigan, the RFRA could still essentially allow forms of discrimination Bolger asserted would not be protected:

One of the ways that anti-discrimination laws work is that you have government agencies going after the people accused of discrimination. In that case, it would be a 'government action,'" said Tucker. "For the landlord who violates the Fair Housing Act, a lot of times it's the government who goes after him. The government takes a lot of steps to protect people from discrimination by others, and that's something that could be severely impacted by this bill."

Furthermore, she said, even if the government is able to prove it had a compelling interest in protecting the tenant from eviction on the basis of his sexual orientation, and that the non-discrimination ordinance was the least restrictive means of accomplishing that goal, the effect would still be a massive clog in the court system, and the tenant would be homeless for the duration of the proceedings.

"What RFRA will do is give businesses and landlords the opportunity to contest everything in court, and force individuals who are now able to live discrimination-free lives to demonstrate that the government has a compelling interest in making those landlords act in a nondiscriminatory fashion," said Tucker. "Even if that individual prevails, he will have spent a lot of time and money, and may be out of a job or out of a home while he's waiting."

For now, what the RFRA may or may not allow is still purely a speculative matter that awaits the bill's final passage into law and court decisions should anyone attempt to exercise its provisions.