The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide variety of health care access, quality, liability, organization, and finance issues, do not deal with constitutional undue burden limitations and the boundaries of religious exercise on a regular basis. Instead, these individuals focus on practical legal questions raised by the day-to-day delivery of health care.
This Article seeks to remedy the lack of judicial and academic attention to practical issues that lie at the intersection of health, law, and religion. Drawing guidance from fields as wide ranging as constitutional law, transportation law, utilities law, criminal law, contract law, tax law, and trusts and estates law, this Article proposes new federal regulations and agency guidance in four illustrative contexts that implicate health, law, and religion. These contexts include religious nonmedical health care, home health care, hospice care, and health information confidentiality. If adopted by the federal Department of Health and Human Services, the proposals set forth in this Article will improve the counsel provided by regulatory health care attorneys as well as the public's understanding of issues that lie at the intersection of health, law, and religion.
74 Wash. & Lee L. Rev. 1623 (2017).
Tovino, Stacey A., "On Health, Law, and Religion" (2017). Scholarly Works. 1083.