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2nd place: FFRF Legal Essay contest — Laura M. Eickholt

Laura 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.  

Church Amendments 

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.