Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

I recently eyeballed a healthcare’s organization’s website featuring its staff. One picture that caught my attention was a staff physician who was wearing a niqab.  

A niqab is a face veil. In this case, the eyes were visible. That is not always the case with a niqab. Sometimes it is accompanied by a separate eye veil. 

Contrast this with hijab, which is a head scarf.  

And a burqa is the most concealing of all, covering the face and body, often just leaving a mesh for vision.  

This was written pre-pandemic, by the way. That may (or may not) change opinions. But it certainly makes it more interesting with the benefit of a COVID backdrop.

In one sense, that physician might look a little different than a surgeon wearing a surgical cap and mask. On the other hand, every staff member in the ICU generally shows their face. So, right or wrong, I believe it will not be received well. Americans are a tolerant people – mostly – and most people are used to seeing women in hijabs, niqabs, and even burqas on metropolitan city streets.  

The city streets are not the same as a hospital. Healthcare is a high-stress environment. It requires strong bonds and trust. These bonds are built through conversation. But, it is also built with feedback, including feedback from facial expressions. A niqab minimizes this feedback. A niqab establishes a boundary.  

Healthcare is also a heavily regulated profession and is touched by federal and state laws. Interestingly, if you want to obtain a passport, the rules are clear. You need to submit a full face photo with no covering.  Driver’s license requirements vary state by state.  

Each individual U.S. state implements its own rules with regard to driver’s licenses and other state ID documents. In many places, an exception is made for religious headwear as long as the person’s face is clearly visible, in line with the State Department guidelines. In some states, this exception is written into state law, while in other states, it is agency policy. A few states allow a no-photo ID card in certain circumstances or provide other accommodations for those with religious needs.  

The least restrictive garment, hijabs, are commonly worn by US physicians. In fact, there is a market for such garb. One scrubs company, TiScrubs, produces a “streamlined medical hijab for women in medicine.” 

And with our Women’s Medical Hijab, it was no different. We set out to make the best medical hijab out there. To do this, we spoke with hijab-wearing physicians from around the US, and we asked them what they were looking for in a hijab that they could wear while working. What we heard over and over again was that they wanted a hijab that provided full coverage of their hair, neck, and chest, yet was simple and functional. One of their biggest concerns was being able to put their stethoscopes on quickly and easily without exposing their hair or ears. After trying different solutions to this problem, we discovered that the simplest solution was the best. 

Still, the hijab leaves the face uncovered. 

As to whether or not a healthcare organization can prevent a physician from covering her face, I cannot see that this issue has been litigated. Most hospitals accept federal funds, and under the Constitution, the government cannot generally pass laws that discriminate against any one particular religion. There are different standards by which the government is allowed to do so. The first is strict scrutiny. There the government bears the burden of proof in demonstrating the following: one, the law or regulation is necessary to address a “compelling state interest”; two, that the law or regulation is “narrowly tailored” to achieving this compelling purpose; and three, that the law or regulation uses the “least restrictive means” to achieve the purpose.  

Strict scrutiny is a tall order for the government to meet.  

Sometimes, courts use a different standard if the law is considered a neutral law of general applicability. The classic case is Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). There, the US Supreme Court held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. 

Oregon’s ban on the possession of peyote is not a law specifically aimed at a physical activity engaged in for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for whatever reason—a “neutral law of general applicability.” Scalia characterized the employees’ argument as an attempt to use their religious motivation to use peyote in order to place themselves beyond the reach of Oregon’s neutral, generally applicable ban on the possession of peyote. The Court held that the First Amendment’s protection of the “free exercise” of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. 

A neutral law of general applicability requires only the state have a rational basis for its reasoning. This is a very low threshold.  

If a state prohibited a woman physician from wearing a full-face veil, the question is whether the state would have to defend using strict scrutiny or the rational basis test.  

The rational basis test for a law of general applicability would be easily met. Regarding strict scrutiny, the state certainly has a compelling interest, as a healthcare regulator, in making sure that all physicians engaged in the practice of medicine are duly licensed, and their identities are easily known. And there may be no less restrictive way to prove someone’s identity in a healthcare setting than showing their face. Also, if the State Department can require full face photos for passports, I would be surprised if state governments could not demand an analogous requirement for practicing medicine. So, it is conceivable the state would meet the strict scrutiny threshold.  

Now to make this even more confusing, Congress passed the Religious Freedom Restoration Act (RFRA). Why? Congress stated in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore, the Act stated that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 

So, Congress stated that even a rule of general applicability could not burden religious practice unless it furthers a compelling state interest, and the rule must be the least restrictive way to further the government interest. Hmm. Sounds like strict scrutiny- yet again. Interestingly, part of RFRA was held to be unconstitutional, though it continues to be applied in select circumstances. More importantly, 21 states have passed their own RFRA laws. This is a long-winded way of saying that strict scrutiny is the test for many state laws that may impact religious practice. Still, as stated earlier, the government would likely meet that threshold for preventing full-face veils in a healthcare setting. 

Now, let’s do an about-face. What about a physician asking a patient to remove her veil? In the U.K., this was put to the test. 

In May 2018, Dr. Keith Wolverson was working a shift at the Royal Stoke University Hospital’s walk-in clinic when he was approached by a woman who was clad in a full-face veil. 

The unnamed woman wanted him to treat her 5-year-old daughter’s sore throat, and Wolverson recalled that the woman’s voice was muffled by the veil, and he couldn’t understand her. 

The doctor then asked if she could remove it. The woman complied, but later, she apparently told her husband, and he complained to the hospital. 

Wolverson said that he has treated a number of Muslim women without any issues and has asked them to remove their veils. In the interview with the [newspaper], the doctor said they usually do so without any problems…. 

“It was about communication. I think it’s really difficult to communicate appropriately and accurately if one can’t see the facial movements as well. It’s a similar thing to asking a patient to remove a crash helmet. It’s not about culture, it’s about clarity,” adding that there was no sign the woman was upset over the matter. 

The complaint to the General Medical Council (U.K.’s healthcare regulatory body) triggered an investigation over allegations of discrimination. Wolverson is defending to keep his job. Once this news hit the press, 130,000 people signed a petition to keep the doctor from being fired. The Doctors Association of U.K. was loud in its opposition to singling out Dr. Wolverson.  

“It is of utmost importance that the religious wishes of our patients are respected. However, evidently, there are some circumstances where the removal of a niqab or burqa is necessary for medical assessment and treatment. The GMC should consider issuing clear guidelines to protect both doctors and our patients.” 

Charlie Massey, the Chief Executive of General Medical Council, told the Doctors’ Association of UK: 

‘Our guidance makes clear that we expect doctors to treat patients’ beliefs and choice of religious dress with respect. If having exhausted all possible alternative communication approaches, a doctor believes they cannot provide safe care without seeing a woman’s face, they can sensitively explore whether she would be willing to remove her face covering.  Should this cause her distress, the doctor will need to continue with other channels of communication. 

‘If a doctor follows this guidance and treats patients politely, honestly, and with sensitivity, then they have nothing to fear from being referred to the GMC. 

This makes no sense to me. If the doctor believes he cannot provide safe care without seeing the patient’s face and this causes the patient distress, mandating the need “to continue with other channels of communication,” it seems the doctor either cannot do his job properly or he has every reason to fear being referred to the GMC. 

We will see how this case plays out. Who knows, the outcome might be entirely different in the U.S.

And it might vary state by state. 

In sum, we live in an increasingly pluralistic environment. Navigating the cultural do’s and don’ts isn’t getting easier. And where the line is drawn seems like a moving target. 

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.