2nd place: FFRF Legal Essay contest — Laura M. Eickholt
The Case for the Plaintiff Provider- Expanding the Scope of the Conscientious Objection
By Laura M. Eickholt
The health care world is witnessing an explosion of questions and challenges surrounding
the overturning of Roe v. Wade and subsequent changes in state abortion law and their impacts on the practice of medicine. Health care providers are facing the serious dilemma of whether or not to provide the optimal patient care they were trained to provide, and risk civil and criminal
prosecution or, adhere to restrictive abortion bans now in effect in many states. These bans not only undermine optimal patient care (as has been made clear by a case recently brought in Texas that outlines the harrowing details of women being denied necessary medical care), but they may also challenge providers’ sincerely held religious or moral beliefs. Providers may be compelled to raise a conscientious objection to withholding necessary abortion care to patients in various circumstances. Just as providers may raise conscientious objections to providing abortion care in states where it is legal; providers in states where it is illegal face the same conflict of conscience in denying abortion care. The rights in question here may (ironically) rest on the Church Amendments (statutes created to protect the rights of religious persons who object to providing abortion care).
This essay will explore whether or not a plaintiff provider with sincerely held religious or moral convictions could raise a conscientious objection defense against their state’s abortion ban, relieving them of civil and criminal liability. This essay will further examine whether or not a conscientious objection is supported by the Free Exercise Clause of the First Amendment.
First, abortion care is healthcare. There are many nuanced situations where pregnancy termination is the only medical intervention that can maintain or restore a patient’s physical, mental, or emotional well-being. Even when a state abortion ban allows for an exception to save the life of the mother, this is still a precarious proposition. Pregnancies unravel in unpredictable ways, and ascertaining the point at which the threat to the mother’s life is imminent enough to perform an abortion without triggering civil or criminal prosecution under state law entails life-threatening uncertainties. These are real questions being asked by providers today. Is the threat imminent enough when a pregnant patient starts leaking amniotic fluid, or when the pregnant patient develops sepsis from the leaking fluid, or when the patient goes into cardiac arrest from the sepsis?5 The nuances of these circumstances, and the fact that there are many other pregnancy complications where abortion is the only option to save their life, highlight why legislation regarding medical care should not be created by untrained persons incapable of treating such medical emergencies.
In response to Roe v. Wade, Congress enacted the Church Amendments to address
concerns that federal law might be interpreted to require individuals and healthcare systems to provide abortions against their religious or moral convictions.
Different religious groups have different beliefs about when life begins and when abortion should be allowed. Jews, for example, believe that the fetus is part of the mother’s body, and as such, the life of the mother is prioritized over that of the fetus. Some faiths have adopted positions believing each case of abortion requires unique considerations. Church Amendments and other state conscience clauses privilege the consciences of providers who refuse to perform abortion services over those who seek to provide abortion care. The
constitutional right to equal protection bars the government from passing laws or taking official actions that treat similarly-situated people or groups of people differently.
The Church Amendments do not require that a conscientious objection be used specifically for a religiously influenced objection, it explicitly added “or moral convictions.” People are capable of having morals and values without being religiously affiliated. If the Church Amendments support a conscientious objection to providing abortion services, they should allow for a conscientious objection to denying abortion services when the religious or morals convictions of the provider compel them to provide abortion care. Recognizing the rights of the conscientious provider is the only position consistent with the purpose of the Church Amendments; which was to protect the conscience rights of providers and not force them to practice contrary to their religious or moral constitutions.
Free Exercise Clause
We know from U.S. v. Ballard and Thomas v. Review Bd. that someone’s religion or beliefs cannot be questioned as to their truth, and neither courts nor the government can tell someone what does or does not offend their religion or beliefs. In the case of the plaintiff provider, defendants may argue that Employment Div. v. Smith applies, dictating that state abortion bans are neutral and generally applicable laws and must be adhered to. However, we have seen the current Court move towards a different approach. In Church of the Lukumi Babalu Aye v.City of Hialeah,, the Court held a law that is neutral on its face may lack neutrality in its effect by forbidding something that religion or moral belief requires. As we learned from Masterpiece Cakeshop, seemingly neutral and generally applicable laws may need to be assessed under a Lukumi lens if there is hostility towards a religion or belief involved. Just as Masterpiece Cakeshop applied Lukumi because the plaintiff’s beliefs were found to have been treated with hostility, you do not have to look far to find hostility in committee reports or public statements from abortion ban bill sponsors to appreciate that abortion bans were implemented with hostility towards providers who believe that abortion care should be decided between a patient, their provider, and their conscience- not the conscience or beliefs of legislators.23 The Texas abortion ban, for example, outlines bounties available to private citizens for reporting aiding and abetting in the procurement of an abortion. The history and tradition of bounties in the U.S. criminal justice system is inherently hostile.
In a 2021 case, Fulton v. City of Philadelphia, the Court made clear that if the government creates a formal mechanism allowing the state to grant exceptions to a law based on discretion- it renders the law non-neutral.26 The exceptions created in abortion bans to save the life of the mother may oblige states to offer conscience-based exemptions to providers.
One must also consider that in response to the Smith case mentioned above- Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA). RFRA was intended to restore protections when laws interfered with the free exercise of religion. RFRA can be used to assert claims regarding federal laws, but many states have adopted their own RFRA’s to address state laws. The test for these state RFRA’s often follow the same analysis as do the federal RFRA claims. The state’s compelling interest argument for abortion bans (protecting the health of the mother and unborn child) should fail because restrictive abortion bans are not the least restrictive means of furthering that compelling state interest. It is well established that child birth presents a higher risk to a mother’s life than having an abortion. In fact, making abortion illegal substantially increases the risk to women.
A state’s interest in regulating abortion, however highly the state ranks it, is not free from a balancing process when it intrudes on fundamental rights- such as those specifically protected by the Free Exercise Clause of the First Amendment, and – where applicable – state RFRA’s.
Justice Gorsuch said in a recent First Amendment case applying RFRA, Kennedy v. Bremerton Sch. Dist., in regard to the protected free exercise of religion; “Respect for religious expressions is indispensable to life in a free and diverse Republic- whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”34 His message was clear. It does not matter where or how expressions of religion or morals are manifested. A sanctuary, a field- a medical facility, or anywhere religious or moral convictions may be expressed; A spoken word, a bowed, head- an act of providing needed care. The same freedom extended to a high school football coach, should be extended to our front-line healthcare providers.
The legality of abortion has never been what precipitated the demand for the safe termination of a pregnancy. Providers will continue to be faced with patients in need of abortion care. Those with religious or moral convictions that compel them to provide such care are trapped in the unknown of the abortion ban debates.
When a provider’s reason for providing abortion care stems from their own religious or moral convictions compelling them to do so, our Constitution protects them- just as it protects providers who have a conscientious objection to denying abortion care. The Church Amendments were not designed to accomplish this outcome, but (ironically) should be read to protect a provider’s conscientious objection to providing the very care the amendments were conceived to deny. The Equal Protection clause, the Free Exercise clause, and state RFRA’s further buttress these claims of conscience.