Disentangling Conscience Protections

Abstract

Public policy debates about law’s role in protecting health care providers’ rights of conscience typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. But these discussions have neglected the vital question of how conscience laws operate – that is, the precise procedural mechanisms by which they protect providers. State and federal laws grant providers legal immunity from a range of possible adverse consequences – including civil liability, criminal prosecution, professional discipline, employment discrimination, and loss of government funding, among others. But unless one believes that the government is obligated to protect providers from all adverse consequences they might experience as a result of their conscience-driven actions, it is essential to disentangle this network of possible protections. This Article presents a taxonomy for analyzing procedural conscience protections that will add greater nuance to current policy debates.

Keywords: conscience, religion, health care, policy, civil liability, malpractice, immunity, abortion

JEL Classification: K13, K19, K49, I18