As the debate over cultural values expands and digs its heels into the sphere of public discourse, it is no surprise that it has made its way into discussions of health care and religion. The law is a significant player in this conversation, shifting the needle in both directions through Supreme Court decisions over the past several decades. The conversations around health care, law, and religion have become steeped in political charge, only increasing the need for nuanced, evidence-based law and policy decisions.
Coming out of a three-day conference of the same name, Law, Religion, and Health in the United States is an ambitious response to the myriad questions that arise at the intersection of these three disciplines. The challenges posed by a pluralistic society are clearly present in religious freedom debates and have moved to the forefront of much of health care debate in this country. Law has the power to both cause and heal the divides between patient and provider, between access and religious freedom. This leads the Petrie-Flom Center at Harvard Law School to put on their annual conference on the subject, hoping to illuminate how the law has been or should be involved. Given the legal landscape that currently exists regarding religious freedom as well as the complexities of health care delivery, it is no surprise that a volume on this subject is broad in scope. This breadth proves to be both the strength and weakness of the volume.
The questions explored by the chapters in this work include the following, among others: What is the existing legal landscape? What do we owe to each stakeholder involved? What deeper questions do these conflicts point to? And, finally, what issues exist on the edges of this intersection of law, religion, and health care? As Martha Minow notes in the foreword, however, “discerning ‘right answers’ may not be possible when there are religiously-motivated conflicts over medical care” (xviii). There are not just two sides to the broad tension that prompts the need for this volume, but it can be oversimplified to the dynamic between the right to free exercise of religion promised by the First Amendment and the need to protect access to health care and population health. Each article addresses at least one side of this tension and does so from a unique perspective.
The introduction provides a helpful recap of where the law currently stands on issues of religious freedom, covering constitutional frameworks, state laws, and the major Supreme Court cases like Employment Division v. Smith and Hobby Lobby. This shows the intention of the editors to cater this volume to more than just legal scholars, or even those who are simply well versed in the landscape of religious freedom law. There is also mention of the ever-shifting nature of this field: President Trump signed an executive order just before the volume went to press that facilitated conscientious objectors in the area of women's health, and that order was upheld by the Supreme Court in Little Sisters of the Poor as this review was going to press. This is an important acknowledgment, one that helps to frame the entire volume as both timely and timeless. The discussions and arguments of the chapters in the volume could serve as guideposts for going forward—examples of the kinds of conversations we should be having and the spirit in which we should be having them. The editors hope the volume will be useful in this way, rather than simply remaining a snapshot of time-specific debates (17). They accomplish this goal through the scope of viewpoints and subject matters addressed in the book.
Given the scope, organization is a key element of making this resource genuinely helpful to the reader. This volume is organized into nine parts, each of which contains three to four chapters. Part one frames the issues broadly, kicking things off with Douglas Laycock's “Religious Liberty, Health Care, the Culture Wars.” But to designate this first set of chapters as introductory to the subject matter is not to say they are merely expository in nature; Laycock's first three sentences reveal what is a controversial position: “Neither Hobby Lobby, nor religious liberty more generally, is a significant threat to American health care” (21). Just two chapters later, Gregory M. Lipper argues that religious liberty has been harmful to women's health and individual rights overall. This is emblematic of the diversity of viewpoints that can be found within the pages of this volume.
The contributions in each subsequent part of the volume tackle the way religious freedom interacts with different institutions or groups, from health insurance and institutions to LGBT health, reproductive health, and public health. The rights of those who seek religious freedom are not ignored, either: there is a section on patients’ religious beliefs and a discussion of the rights and duties of providers with beliefs that limit their practice. This organization highlights what is perhaps the clearest common thread throughout the volume: the plurality of beliefs in our society is presenting challenges in every sector of the health care industry and touching on every major cultural debate. While this theme could become overwhelming, the clarity of the organization helps orient the reader and prevents the volume from becoming unwieldy.
Given the realities of these debates, no chapter can be truly neutral or take into account the rights of each competing party. The nature of the tension between religious freedom and access to health care often makes it so that respecting the individual rights of one person means infringing upon the rights of another. Despite this, Robin Fretwell Wilson attempts to bring some nuance to what can often be described as a zero-sum game, arguing “it is possible to balance conscience and access, in at least some cases, by using common-sense devices” (242). These include such measures as notice requirements placed on institutions who refuse to provide medical procedures based on their religious beliefs. This tracks closely with the efforts by Nadia Sawicki to create space for conscience-based objections by health care providers without burdening patient access. She proposes that there exists a common-law duty under informed consent for providers to disclose their objections up front, providing patients with the ability to choose a provider who suits their needs (187–98). Sawicki's is an example of the chapters in the volume that offer workable solutions that can be adapted to the quickly changing field.
Seeing as this topic is by nature interdisciplinary, the volume provides novel analyses of decades-old debates, like Diane L. Moore and Eric M. Stephen's efforts to track the development of the Religious Freedom Restoration Act from a cultural studies perspective (34–46). Another example is Mary Anne Case's bold historical and legal comparison between prevailing religious freedom jurisprudence and historic feudalism (230–41). Abbas Rattani and Jemel Amin Derbali's argument that the insanity defense in criminal cases is unevenly applied depending on one's religious beliefs shows a surprising intersection of religious debates with criminal law (319–31). Chapters like these are emblematic of the editors’ commitment to give voice to diverse arguments, not just in diversity of opinion, but also of approach.
Readers will find niche analyses in the same place as introductory examinations and background information on the intersection of law, religion, and health. This is why the volume can feel somewhat like a textbook: it is friendly to both beginners and seasoned scholars, making it a valuable resource. While edited volumes of similar structure often aim to explore a narrower topic or track a more singular argument, this volume feels like a dive into an ocean of topics, all touched in one way or another by the intersection of law, religion, and health.
Law, Religion and Health in the United States provides an example of the potential strength and utility of an edited volume; it manages to explore several rarely touched corners of the debates surrounding religion, health, and the role of law while maintaining a common thread throughout. Although its significant breadth may render it less useful as a whole for some purposes, any academic or interested individual can benefit from at least one of the arguments or viewpoints provided.
