Conscience clauses are legal
clause
In language, a clause is a constituent that comprises a semantic predicand (expressed or not) and a semantic predicate. A typical clause consists of a subject and a syntactic predicate, the latter typically a verb phrase composed of a verb with ...
s attached to laws in some parts of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
and other countries which permit
pharmacist
A pharmacist, also known as a chemist (Commonwealth English) or a druggist (North American and, archaically, Commonwealth English), is a healthcare professional who prepares, controls and distributes medicines and provides advice and instructi ...
s,
physician
A physician (American English), medical practitioner (Commonwealth English), medical doctor, or simply doctor, is a health professional who practices medicine, which is concerned with promoting, maintaining or restoring health through th ...
s, and/or other providers of
health care
Health care or healthcare is the improvement of health via the prevention, diagnosis, treatment, amelioration or cure of disease, illness, injury, and other physical and mental impairments in people. Health care is delivered by health profe ...
not to provide certain medical services for reasons of
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
or
conscience
Conscience is a cognitive process that elicits emotion and rational associations based on an individual's moral philosophy or value system. Conscience stands in contrast to elicited emotion or thought due to associations based on immediate sens ...
. It can also involve parents withholding consenting for particular treatments for their children.
[Berlinger, Nancy. "Conscience Clauses, Health Care Providers, and Parents", The Hastings Center]
/ref>
In many cases, the clauses also permit health care providers to refuse to refer patients to unopposed providers. Those who choose not to refer or provide services may not be disciplined or discriminated against. The provision is most frequently enacted in connection with issues relating to reproduction
Reproduction (or procreation or breeding) is the biological process by which new individual organisms – "offspring" – are produced from their "parent" or parents. Reproduction is a fundamental feature of all known life; each individual or ...
, such as abortion
Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregn ...
(see conscientious objection to abortion
Conscientious objection to abortion is the right of medical staff to refuse participation in abortion for personal belief.
By country
Americas United States
Europe
Conscientious objection is granted in 22 member states of the European Uni ...
), sterilization, contraception
Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
, and stem cell
In multicellular organisms, stem cells are undifferentiated or partially differentiated cells that can differentiate into various types of cells and proliferate indefinitely to produce more of the same stem cell. They are the earliest type o ...
based treatments, but may include any phase of patient care.[
]ISSN
An International Standard Serial Number (ISSN) is an eight-digit serial number used to uniquely identify a serial publication, such as a magazine. The ISSN is especially helpful in distinguishing between serials with the same title. ISSNs ...
br>1549-3199
LCCN
The Library of Congress Control Number (LCCN) is a serially based system of numbering cataloged records in the Library of Congress, in the United States. It is not related to the contents of any book, and should not be confused with Library of ...
br>2004212209
OCLC
OCLC, Inc., doing business as OCLC, See also: is an American nonprofit cooperative organization "that provides shared technology services, original research, and community programs for its membership and the library community at large". It was ...
:.
History
The earliest national conscience clause law in the United States, which was enacted immediately following the Supreme Court's decision in ''Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
'', applied only to abortion and sterilization. It was sponsored by Senator Frank Church
Frank Forrester Church III (July 25, 1924 – April 7, 1984) was an Americans, American politician and lawyer. A member of the Democratic Party (United States), Democratic Party, he served as a United States Senate, United States senator from Idah ...
of Idaho. The Church Amendment of 1973, passed by the Senate on a vote of 92–1, exempted private hospitals receiving federal funds under the Hill-Burton Act, Medicare and Medicaid
Medicaid in the United States is a federal and state program that helps with healthcare costs for some people with limited income and resources. Medicaid also offers benefits not normally covered by Medicare, including nursing home care and pers ...
from any requirement to provide abortions or sterilizations when they objected on “the basis of religious beliefs or moral convictions.” Nearly every state enacted similar legislation by the end of the decade—often with the support of legislators who otherwise supported abortion rights. Supreme Court Justice
The Supreme Court of the United States is the highest-ranking judicial body in the United States. Its membership, as set by the Judiciary Act of 1869, consists of the chief justice of the United States and eight Associate Justice of the Supreme ...
Harry Blackmun
Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Blac ...
, the author of the Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.
Not all cases have ...
, endorsed such clauses “appropriate protection” for individual physicians and denominational hospitals.
According to Nancy Berlinger, of the bioethics research institute The Hastings Center
The Hastings Center is an independent, nonpartisan bioethics research institute and think tank based in Garrison, New York. It was instrumental in establishing the field of bioethics and is among the most prestigious bioethics and health policy i ...
, "...Conscientious objection in health care always has a social dimension and ...Laws and professional guidelines on conscientious objection in health care must balance the respect for an individual’s beliefs against the well-being of the general public."[
Conscience clauses have been adopted by a number of U.S. states. including ]Arkansas
Arkansas ( ) is a landlocked state in the South Central United States. It is bordered by Missouri to the north, Tennessee and Mississippi to the east, Louisiana to the south, and Texas and Oklahoma to the west. Its name is from the Osage ...
, Illinois
Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
, Indiana
Indiana () is a U.S. state in the Midwestern United States. It is the 38th-largest by area and the 17th-most populous of the 50 States. Its capital and largest city is Indianapolis. Indiana was admitted to the United States as the 19th s ...
, Iowa
Iowa () is a state in the Midwestern region of the United States, bordered by the Mississippi River to the east and the Missouri River and Big Sioux River to the west. It is bordered by six states: Wisconsin to the northeast, Illinois to the ...
, Kansas
Kansas () is a state in the Midwestern United States. Its capital is Topeka, and its largest city is Wichita. Kansas is a landlocked state bordered by Nebraska to the north; Missouri to the east; Oklahoma to the south; and Colorado to the ...
, Kentucky
Kentucky ( , ), officially the Commonwealth of Kentucky, is a state in the Southeastern region of the United States and one of the states of the Upper South. It borders Illinois, Indiana, and Ohio to the north; West Virginia and Virginia to ...
, Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, Maine
Maine () is a state in the New England and Northeastern regions of the United States. It borders New Hampshire to the west, the Gulf of Maine to the southeast, and the Canadian provinces of New Brunswick and Quebec to the northeast and north ...
, Maryland
Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean to ...
, , Michigan
Michigan () is a state in the Great Lakes region of the upper Midwestern United States. With a population of nearly 10.12 million and an area of nearly , Michigan is the 10th-largest state by population, the 11th-largest by area, and the ...
, Mississippi
Mississippi () is a state in the Southeastern region of the United States, bordered to the north by Tennessee; to the east by Alabama; to the south by the Gulf of Mexico; to the southwest by Louisiana; and to the northwest by Arkansas. Miss ...
, Pennsylvania
Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
, and South Dakota
South Dakota (; Sioux language, Sioux: , ) is a U.S. state in the West North Central states, North Central region of the United States. It is also part of the Great Plains. South Dakota is named after the Lakota people, Lakota and Dakota peo ...
. There are some recent comprehensive reviews of federal and state conscience clause laws across the United States and in select other countries.
Some clauses address local concerns: Oregon, recognizes a physician's right to refuse to participate in physician-assisted suicide, although it is legal in that state.[
]
Informed consent
An informed consent
Informed consent is a principle in medical ethics and medical law, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatme ...
clause, although allowing medical professionals not to perform procedures against their conscience, does not allow professionals to give fraudulent information to deter a patient from obtaining such a procedure (such as lying about the risks involved in an abortion to deter one from obtaining one) in order to impose one's belief using deception. These principles were reaffirmed in the Utah Supreme Court
The Utah Supreme Court is the supreme court of the state of Utah, United States. It has final authority of interpretation of the Utah Constitution. The Utah Supreme Court is composed of five members: a chief justice, an associate chief justice, ...
's decision in ''Wood v. University of Utah Medical Center'' (2002). Commenting on the case, bioethicist Jacob Appel of New York University wrote that "if only a small number of physicians intentionally or negligently withhold information from their patients significant damage is done to the medical profession as a whole" because "pregnant women will no longer know whether to trust their doctors."
Right of Conscience Rule
The Right of Conscience Rule was a set of protections for healthcare workers enacted by President George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
on December 18, 2008, allowing healthcare workers to refuse care based on their personal beliefs. Specifically, the rule denied federal funding to institutions that did not allow workers to refuse care that went against their beliefs. In February 2011, President Barack Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
rescinded the Right of Conscience Rule.
Pharmacists
States have historically provided a conscience clause right allowing pharmacists to refrain from participating in abortions. In April 2005, Governor Rod Blagojevich
Rod Blagojevich ( , born December 10, 1956), often referred to by his nicknames "Blago" or "B-Rod", is an American former politician, political commentator, and convicted felon who served as the 40th governor of Illinois from 2003 to 2009, when ...
by emergency executive order required all pharmacists to provide Plan B levonorgestrel
Levonorgestrel is a hormonal medication which is used in a number of birth control methods. It is combined with an estrogen to make combination birth control pills. As an emergency birth control, sold under the brand name Plan B One-Step among ...
. In September 2012, the Illinois Appellate Court
The Illinois Appellate Court is the court of first appeal for civil and criminal cases rising in the Illinois Circuit Courts. Three Illinois Appellate Court judges hear each case and the concurrence of two is necessary to render a decision. The ...
found the Governor's order violated Illinois law.
In June 2006, the Pharmacy Board of the Washington State Department of Health
The Washington State Department of Health is a state agency of Washington. It is headquartered in Olympia, Washington. The agency was created by the state legislature in May 1989 after splitting from the Washington State Department of Social and ...
rejected a draft rule proposed by Governor Christine Gregoire
Christine Gregoire (; née O'Grady; born March 24, 1947) is an American politician who served as the 22nd governor of Washington from 2005 to 2013. A member of the Democratic Party, she defeated Republican candidate Dino Rossi in 2004, and again ...
to require all pharmacies to begin carrying Plan B.[Jason R. Mau, Stormans ''and the Pharmacists: Where Have All the Conscientious Rx Gone?'']
114 Penn St. L. Rev. 293 (2009). Governor Gregoire responded by releasing a public statement warning the board members to reconsider or they could be removed.[ In July 2006, the Washington State Human Rights Commission warned the board members that they would be personally liable for illegally discriminating against women if they did not pass the Governor's Plan B rule.][ In April 2007, the Board approved a final rule prohibiting pharmacies from not stocking Plan B for religious reasons but allowing exemptions for “good faith” business reasons.][
When Ralph's Thriftway, a grocery store in ]Olympia, Washington
Olympia is the capital of the U.S. state of Washington and the county seat and largest city of Thurston County. It is southwest of the state's most populous city, Seattle, and is a cultural center of the southern Puget Sound region.
European ...
, refused for religious reasons to carry Plan B, it was widely boycotted, leading Gregoire to cancel the grocer's longstanding account with the Washington Governor's Mansion
The Washington Governor's Mansion is the official residence of the governor of Washington. The Georgian-style mansion is located on the grounds of the State Capitol campus in the capital city Olympia. It is on the crest of Capitol Point, with ...
.[ The only complaints for violating the Plan B rule were filed against the grocer.][ Half of Washington's hospitals are Catholic. The grocer sued but, instead of alleging violations of the broader ]Constitution of Washington
The Constitution of the State of Washington is the document that describes the structure and function of the government of the U.S. State of Washington. The constitution was adopted as part of Washington Territory's path to statehood in 1889. An e ...
, its attorneys at the Alliance Defending Freedom
Alliance Defending Freedom (ADF, formerly Alliance Defense Fund) is an American conservative Christian legal advocacy group that works to curtail rights for LGBTQ people; expand Christian practices within public schools and in government; and ...
and the Becket Fund for Religious Liberty
Becket Law (formerly the Becket Fund for Religious Liberty) is a non-profit public interest law firm based in Washington, D.C., that describes its mission as "defending the freedom of religion of people of all faiths." Becket promotes accommodat ...
only filed under the Free Exercise Clause
The Free Exercise Clause accompanies the Establishment Clause of the First Amendment to the United States Constitution. The ''Establishment Clause'' and the ''Free Exercise Clause'' together read:
Free exercise is the liberty of persons to re ...
of the United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
.[Noel E. Horton, ''Article I, Section 11: A Poor "Plan B" for Washington's Religious Pharmacists"]
85 Wash. L Rev. 739 (2010). The case is known as ''Stormans, Inc. v. Wiesman''.
On November 8, 2007, U.S. District Judge Ronald B. Leighton granted the grocer a preliminary injunction blocking the rule.[ On May 1, 2008, ]United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
Judges Thomas G. Nelson
Thomas George Nelson (November 14, 1936 – May 4, 2011) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit from 1990 to 2004.
Education and career
Born and raised in Idaho Falls, Idaho, Nelson graduated ...
and Jay Bybee
Jay Scott Bybee (born October 27, 1953) is an American lawyer and jurist serving as a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and has taug ...
denied the state a stay of the injunction pending appeal, over a dissent by Judge A. Wallace Tashima
Atsushi Wallace Tashima (born June 24, 1934) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit and a former United States District Judge of the United States District Court for the Central Distric ...
.[ However, on July 8, 2009, Circuit Judge ]Kim McLane Wardlaw
Kim McLane Wardlaw (born July 2, 1954) is an American lawyer and jurist serving as a U.S. circuit judge of the U.S. Court of Appeals for the Ninth Circuit since 1998. She is the first Hispanic American woman to be appointed to a federal appeals ...
, joined by Richard Clifton and N. Randy Smith
Norman Randy Smith (born August 11, 1949) is a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He lives and maintains chambers in Pocatello, Idaho.
Background
A native of southeastern Idaho, Smith ...
reversed the preliminary injunction.[
On February 22, 2012, after four years of discovery and a twelve-day bench trial, Judge Leighton issued a permanent injunction blocking the Plan B rule as unconstitutional. On July 23, 2015, Circuit Judge Susan P. Graber, joined by Judges Mary H. Murguia and Richard Clifton reversed. The grocer's petition for ]certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
from the Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
was denied on June 28, 2016. Justice Samuel Alito
Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has served ...
, joined by Chief Justice John Roberts
John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including ''Nati ...
and Justice Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
, dissented, writing that “the rules challenged here reflect antipathy towards religious beliefs that do not accord with the views of those holding the levers of government power.”
In 2014 and 2016, Senator Cory Booker
Cory Anthony Booker (born April 27, 1969) is an American politician and attorney who has served as the junior United States senator from New Jersey since 2013. A member of the Democratic Party, Booker is the first African-American U.S. sena ...
introduced the “Access to Birth Control Act” bill, which would require all pharmacists in the United States to provide emergency contraception.
Responses
Health care providers opposed to abortion or contraception
Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
support the clauses because they believe that disciplinary or legal action for refusing to perform services obliges providers to supply services which their moral or religious principles forbid.
Reproductive rights
Reproductive rights are legal rights and freedoms relating to reproduction and reproductive health that vary amongst countries around the world. The World Health Organization defines reproductive rights as follows:
Reproductive rights rest on t ...
organizations, such as Planned Parenthood
The Planned Parenthood Federation of America, Inc. (PPFA), or simply Planned Parenthood, is a nonprofit organization that provides reproductive health care in the United States and globally. It is a tax-exempt corporation under Internal Reve ...
and NARAL Pro-Choice America
NARAL Pro-Choice America, commonly known as simply NARAL ( ), is a non-profit 501(c)(4) organization in the United States that engages in lobbying, political action, and advocacy efforts to oppose restrictions on abortion, to expand access to ...
, oppose the provision because they maintain that pharmacists, doctors, and hospitals have a professional
A professional is a member of a profession or any person who works in a specified professional activity. The term also describes the standards of education and training that prepare members of the profession with the particular knowledge and skil ...
duty to fulfill patients' legal medical needs, regardless of their own ethical stances. Opponents see conscience clauses as an attempt to limit reproductive rights in lieu of bans struck down by Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
rulings such as ''Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
''.
As a result, the term "conscience clause" is controversial and primarily used by those who support these provisions. Those who oppose them often prefer to use the term "refusal clause," implying that those who exercise the clauses are refusing to treat a patient.
In 2018, Roger Severino
Roger Thomas Severino is an American attorney who served as the director of the Office of Civil Rights (OCR) at the United States Department of Health and Human Services from 2017 to 2021. He is currently a Senior Fellow at the Ethics and Public ...
, the then-Director of the Office for Civil Rights at the United States Department of Health and Human Services
The United States Department of Health and Human Services (HHS) is a cabinet-level executive branch department of the U.S. federal government created to protect the health of all Americans and providing essential human services. Its motto is ...
, criticized those who oppose conscience clauses, saying “ ere’s a movement that tries to squelch dissent on the question of abortion so that those that stand up for life are being systematically driven out of the medical profession.” He also stated that “ body should be fired from their position as a medical professional because they refuse to participate in the taking of a human life in abortion. It’s illegal, if you receive federal funds. You may expect an enforcement action from the HHS Office for Civil Rights, if you do such a thing.”
Catholic doctrine
The conscience clause is widely invoked in Catholic universities, hospitals, and agencies because the Catholic Church opposes abortion, contraceptives, sterilization, and embryonic stem cell treatments. Opponents of related FOCA legislation have interpreted the possible end of the conscience clause as a demand to either "do abortions or close." Timothy Dolan
Timothy Michael Dolan (born February 6, 1950) is an American cardinal of the Catholic Church. He is the tenth and current Archbishop of New York, having been appointed by Pope Benedict XVI in 2009.
Dolan served as the president of the United S ...
has said, "“In effect, the president is saying we have a year to figure out how to violate our consciences." However, conscience clauses are sometimes interpreted differently and their use will often depend on the given context.
Three members of the Department of Obstetrics, Gynecology and Reproductive Sciences and the Bixby Center for Global Reproductive Health
The UCSF School of Medicine is the medical school of the University of California, San Francisco and is located at the base of Mount Sutro on the Parnassus Heights campus in San Francisco, California. Founded in 1864 by Hugh Toland, it is the o ...
at UCSF
The University of California, San Francisco (UCSF) is a public land-grant research university in San Francisco, California. It is part of the University of California system and is dedicated entirely to health science and life science. It condu ...
have questioned whether "conscience clauses" are ethical, writing in a journal article that "in some Catholic-owned hospitals, the private patient–physician relationship, patient safety, and patient comfort are compromised by religious mandates that require physicians to act contrary to the current standard of care in miscarriage management."
See also
* Religious views on birth control
Religious adherents vary widely in their views on birth control (also known as contraception). This can be true even between different branches of one faith, as in the case of Judaism and Christianity. Some religious believers find that their own ...
References
Further reading
* Appel, Jacob M. 'Conscience' vs. Care: How Refusal Clauses are Reshaping the Rights Revolution, ''Medicine and Health, Rhode Island'', August 2005.
* Appel, Jacob M. Physicians, 'Wrongful Life' and the Constitution, ''Medicine and Health, Rhode Island'', February 2004.
A Pro-Choice Litmus Test for Obstetricians
* Roshelli, Kristin M. ''Religiously Based Discrimination: Striking a Balance Between a Health Care Provider's RIght to Religious Freedom and a Woman's Ability to Access Fertility Treatment Without Facing Discrimination,'' 83 St. John's Law Review 977 (Summer 2009).
External links
State-by-state information from the Alan Guttmacher Institute
Ascension Health
Pharmacists for Life International
{{DEFAULTSORT:Conscience clause
Birth control in the United States
Healthcare in the United States
Health law in the United States
Medical ethics
Medical law
United States abortion law