Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State

Abstract

Industry-funded religious liberty litigation groups have sought to undermine healthcare policy and law while simultaneously attacking the rights of sexual and gender minorities. Whereas past scholarship has tracked religiously affiliated healthcare providers’ growing political power and attendant transformations to legal doctrine, our account emphasizes the political donors and visionaries who have leveraged religious providers and the U.S. healthcare system’s delegated structure to transform social policy and bureaucratic agencies more generally. We collect and analyze industry-funded litigation briefs, track statutory and constitutional developments in federal courts, and employ a historical institutionalist analysis of the U.S. healthcare system. Case studies include: 1) the Affordable Care Act’s implementation; 2) the Department of Health and Human Services (HHS) interpretations of its rules and relevant congressional statutes; 3) the professional civil service; and 4) state and federal COVID-19 public health policies. We find that industry-funded religious liberty legal organizations have successfully limited the rights of sexual and gender minorities and access to reproductive healthcare while also curtailing the administrative authority of agencies including HHS. Our case studies highlight the threat that industry-funded religious liberty legal organizations pose for effective healthcare regulation, reproductive healthcare access, and civil rights enforcement for sexual and gender minorities.

Keywords: Healthcare Policy, First Amendment, Religious Liberty, Administrative Law, Gender and Sexuality, Civil Rights, Dark Money, LGBTQ+ Rights, Reproductive Rights; Free Exercise]