Freedom from Religion: A Vulnerability Theory Approach to Restricting Conscience Exemptions in Reproductive Healthcare

29 Pages Posted: 13 May 2017 Last revised: 16 Jun 2019

Date Written: May 12, 2017

Abstract

Conscience exemption laws, which permit refusals of service based on personal or religious belief, echo the formal equality approach embodied in antidiscrimination laws. They attempt to promote individual religious autonomy without taking into consideration the power and information disparities between institutional and individual actors and the harm that refusals can cause. Martha Fineman’s vulnerability theory turns formal equality on its head by dismantling our conception of independent individuals, who are freely able to achieve equal outcomes if they are treated alike, and by explaining that the shared vulnerability of all people requires a responsive state to address unequal access to resources that improve resiliency. Focusing on the reproductive healthcare setting, this Article uses vulnerability theory to identify the weaknesses in current conscience exemption laws and to argue the vulnerable patient’s right to information and unfettered medical decisionmaking outweighs the conscience exemption rights of institutions and individuals charged with providing such important social services. Accordingly, the state should take action to prohibit institutions from denying care on the basis of conscience and limit the ability of individual providers to conscientiously object.

Keywords: discrimination, sex, gender, religious freedom, conscience exemption, reproductive

Suggested Citation

Stephens, Sarah, Freedom from Religion: A Vulnerability Theory Approach to Restricting Conscience Exemptions in Reproductive Healthcare (May 12, 2017). 29 Yale Journal of Law & Feminism 93 (2017), Available at SSRN: https://ssrn.com/abstract=2967374

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