The Conscience Defense to Malpractice

51 Pages Posted: 8 May 2019

See all articles by Nadia N. Sawicki

Nadia N. Sawicki

Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy

Date Written: February 1, 2019


This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in the provision of reproductive health services – including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights 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. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate – that is, the precise procedural mechanisms by which they protect those who decline to provide medical services that violate their deeply-held conscientious beliefs.

This Article demonstrates that state laws vary dramatically in the types of conscience protections they offer. States may immunize health care providers from a wide range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in education, and denial of public or private funding, among others. Of these, immunity from civil liability is by far the most common procedural protection. In a majority of states, this immunity is absolute – providing no exceptions in cases of malpractice, denial of emergency treatment, or patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has yet been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied such care. This Article not only raises awareness of the previously-unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws. This Article highlights opportunities for future research on the question of whether conscience-driven health care providers should be granted legal immunity from all possible adverse consequences of their actions, or whether these protections should be balanced against state interests in ensuring that patients who are injured by provider refusals are not denied opportunities for tort recovery.

Keywords: conscience, malpractice, reproductive rights, abortion, contraception, tort, civil liability, health care, legislation

Suggested Citation

Sawicki, Nadia N., The Conscience Defense to Malpractice (February 1, 2019). California Law Review, 2020 Forthcoming, Available at SSRN: or

Nadia N. Sawicki (Contact Author)

Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy ( email )

25 E. Pearson
Chicago, IL 60611
United States

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