Religious Liberty Commission Testimony

Yesterday I testified on religious freedom in healthcare before the President's Commission on Religious Liberty, on conscience rights for healthcare professionals and informed consent for vaccines.

My testimony begins at 2:34:00. The Q&A with the panel which follows is also worth watching. For those who prefer to read, I’ve included my remarks below.

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My name is Aaron Kheriaty. I am a physician specializing in psychiatry and the Director of the Bioethics, Technology, and Human Flourishing Program at the Ethics and Public Policy Center. The first part of my talk will revisit some of the issues from our first panel (religious freedom for healthcare providers), while the second part will return to the theme of this panel (religious freedom related to vaccine consent).

When I was a medical student on my obstetrics clerkship, I was assisting my first patient on the labor and delivery service. However, this woman’s labor was not progressing well, so they decided to convert her from a vaginal delivery to a cesarean section. I was to scrub in and assist on the c-section in the operating room. I walked with the intern into the patient’s room to obtain consent for the procedure. The patient, still huffing and puffing from painful labor, said, “I just spoke with my husband, and we decided that while you’re in there you can go ahead and tie my tubes.” The intern responded, “are you sure,” and the patient replied, while still in labor, “yes.” That was the extent of the informed consent for an irreversible procedure that would render her permanently sterile.

As the intern and I walked to the scrub station I informed her that I was willing to assist on the cesarean but would need to step out of the OR and not help with the tubal ligation, as a matter of conscience. The resident became irate, asking, “How dare you impose your views on this patient?” I replied that I was imposing nothing on anyone, merely telling her what Iwas and was not willing to assist on. I did not scrub in on that case, and for the rest of the rotation that intern made my life hell. I managed a passing grade but the comments that ended up in my dean’s letter and residency application were unfairly critical—not because of my performance but because I chose to exercise my rights of conscience.

I believed that damaging a healthy organ system—in this case the patient’s reproductive system—contradicted the ends and purposes of good medicine. In addition, the procedure of permanent sterilization also violated the moral teachings of my sincerely held Catholic faith. What is more, I knew clearly that the so-called informed consent for that procedure was a sham. I mean, what women in the middle of labor wants in that moment to think about having another baby! That’s clearly not the time to hurriedly make this irreversible decision.

I did not realize it at the time, but I was also the only person in that case actually upholding the hospital’s own policy. For this was Georgetown University Hospital, which as a supposedly Catholic institution, was legally bound to abide by the Ethical and Religious Directives of the Catholic Bishops, which forbade procedures whose sole aim was permanent sterilization.

After the incident I ended up getting dragged before the obstetrics department chair, at the behest of the chief medical officer (the hospital’s head administrator), to explain what happened. As a lowly medical student, the power dynamics were intimidating, and nobody from the hospital administration or school of medicine accompanied me through that process. The chair of obstetrics made excuses for violating the hospital’s own policies and the entire meeting was a farce.

Another thing I did not realize at the time was that I was supposed to have been protected from retaliation by federal laws, such as Church, Coats-Snowe, and Weldon Amendments. These laws protect the rights of healthcare workers to decline participation in medical interventions that violate their conscience, religious beliefs, or moral convictions—such as declining to participate in an abortion or sterilization procedure. Although I did not know this, healthcare workers and trainees are also protected by these laws from retaliation should they decline to assist on these procedures.

The Department of Health and Human Services issued a New Nondiscrimination Final Rule to Protect Conscience Rights two years ago in January 2024. It encourages (but does not require) hospitals and clinics to voluntarily post a notice of rights to ensure compliance and educate the public about conscience statutes and rights. These laws were in place when I went to medical school, but I had no understanding of them or of my rights under Federal law. As a medical student interested in ethics, I was better informed on these issues that most. Yet still, I was never advised of my rights, even after they were violated and the hospital leadership was notified.

Clearly, if healthcare providers and trainees are not informed of these rights at orientation, then the laws on the books remain a dead letter. Those whose rights are violated need support not just from the HHS Office of Civil Rights, but also a right of private action in case the OCR is slow to respond to complaints, as often happened under previous administrations. Furthermore, these protections need to be extended in Federal law to include other procedures, which were not common when these laws were enacted but are now ubiquitous, such as doctor-assisted suicide, euthanasia, and sex-rejecting procedures (what advocates euphemistically term “gender affirmative care”). While euthanasia is briefly mentioned in the Affordable Care Act, this merely regulates payments to hospitals, and that law alone does not protect conscience rights of individuals.

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Fast forward to 2021, when I was director of the medical ethics program at the University of California Irvine. I served on a committee at the Office of the President, which oversaw all five UC branch campuses that had hospital and medical schools. Our committee vetted all the covid policies up until the vaccine mandate policy, which came down from on high with no discussion or debate. I found this puzzling, since this would clearly be the most publicly and ethically controversial of the University’s proposed covid policies. So I published a piece in the Wall Street Journal, coauthored with a law professor, arguing that University vaccine mandates were unethical. This failed to start a conversation at the University, which enacted the policy a couple weeks later.

Because I had gone public in my opposition to the policy, I had students, nurses, and faculty from the University reaching out to me, very distressed that they would soon be fired for declining the covid shot. So I decided to not only criticize the policy but to try and change it: I challenged the University’s covid shot mandate in federal court on behalf of people like me who had natural immunity after recovering from the virus. Before the court ruled in my case the University fired me in retaliation. I had been a professor there in the school of medicine for sixteen years, where I had won the excellence in teaching award three times from the medical students.

When it comes to vaccines, laws in many states fail to protect conscience rights and religious liberty. While I am not a lawyer, I fail to see how such laws could withstand judicial scrutiny, as it seems they clearly violate the free exercise clause of the First Amendment.

For example, states like California where I live and practice medicine, do not have laws allowing religious or conscience-based exemptions for parents to opt-out of the childhood vaccination requirements. Many people have religious or moral objections to the use of cell lines derived from aborted fetuses, often used in the development and testing of vaccines. In states like California, if parents choose not to use these products, then they are not permitted to send their kids to public or even private schools. Those who cannot homeschool are left with no options.

As Commissioner Ryan Anderson noted earlier today at this hearing, one does not have to rely on doctrines of revealed religion to see that medicine has its own internal morality: that medicine should always and only be aimed at health and healing. By the light of reason alone we can see that (1) doctors should not intentionally kill their patients, (2) doctors should not intentionally destroy healthy functioning organs or organ systems, and (3) doctors should not force treatments on patients that patients decline for medial, moral, or religious reasons.

In our current confused culture, however, it is often men and women of faith, buttressed and given courage by their religious convictions, who uphold these traditional principles of Hippocratic Medicine. Some federal laws protect them in these circumstances, but these laws are neither well known nor consistently enforced. They are also too narrow to cover new threats to the integrity of medical practice.

After the excesses and authoritarian overreach by governments during covid, the people of the United States are pushing back and reasserting their rights of conscience and freedom of religion in healthcare. I pray that this committee will assist them by strengthening and enforcing the federal laws on the books, educating the public regarding their rights, and leaning on states to do the right thing when it comes to free and informed consent.

Thank you.

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