Legal Briefing: Conscience Clauses and Conscientious Refusal

Abstract:     
Since 2009, Professor Pope has authored a quarterly "Legal Briefing" column for the Journal of Clinical Ethics. Each briefing comprehensively reviews legal developments concerning a particular issue in clinical bioethics.

This issue’s “Legal Briefing” column covers legal developments pertaining to conscience clauses and conscientious refusal. Not only has this topic been the subject of recent articles in this journal, but it has also been the subject of numerous public and professional discussions. Over the past several months, conscientious refusal disputes have had an unusually high profile not only in courthouses, but also in legislative and regulatory halls across the United States.

Healthcare providers’ own moral beliefs have been obstructing and are expected to increasingly obstruct patients’ access to medical services. For example, some providers, on ethical or moral grounds, have denied: (1) sterilization procedures to pregnant patients, (2) pain medications in end-of-life situations, and (3) information about emergency contraception to rape victims. On the other hand, many healthcare providers have been forced to provide medical treatment that is inconsistent with their moral beliefs.

There are two fundamental types of conscientious objection laws. First, there are laws that permit healthcare workers to refuse providing – on ethical, moral, or religious grounds – healthcare services that they might otherwise have a legal or employer-mandated obligation to provide. Second, there are laws directed at forcing healthcare workers to provide services to which they might have ethical, moral, or religious objections. Both types of laws are rarely comprehensive, but instead target: (1) certain types of healthcare providers, (2) specific categories of healthcare services, (3) specific patient circumstances, and (4) certain conditions under which a right or obligation is triggered.

For the sake of clarity, I have grouped recent legal developments concerning conscientious refusal into eight categories: (1) abortion: right to refuse; (2) abortion: duty to provide; (3) contraception: right to refuse; (4) contraception: duty to provide; (5) sterilization: right to refuse; (6) fertility, HIV, vaccines, counseling; (7) end-of-life measures: right to refuse; and (8) comprehensive laws: right to refuse.

Keywords: conscience clauses, conscientious refusal, healthcare providers, medical ethics, healthcare, health law, abortion, contraception

JEL Classification: K32

Accepted Paper Series