PDF2007 State Legislative Sessions in Review: Rights of Conscience

By Denise M. Burke, Vice President & Legal Director, Americans United for Life

 

The conflict between social pressure and the demands of conscience can lead to the dilemma either of abandoning the medical profession or of compromising one's convictions . . . There is a middle path . . . It is the path of conscientious objection, which ought to be respected by all, especially legislators.

- Pope John Paul II, Rome (18 July 2001)

 

A right to conscientiously object must be a comprehensive civil right for any healthcare provider to refuse to participate in any healthcare service based on religious or moral convictions. All individuals, including healthcare providers, have a fundamental right to exercise their religious beliefs and conscience. Unfortunately, too frequently there is inadequate protection of the civil rights of healthcare providers who conscientiously object to participating in certain controversial healthcare services.

 

Current statutes that address this issue are largely inadequate because, for the most part, all that they provide is a right for physicians, nurses, and private hospitals to refuse to participate in performing abortion. They often fail to address dispensing of contraceptives and abortifacients, decisions regarding assisted suicide and euthanasia, and involvement in biotechnology and research, including human cloning and destructive forms of stem cell research. Moreover, these statutes often narrowly construe the word "participate" to exclude such activities as referral to and payment for the controversial service and preparation of the patient prior to that service.

 

As public opinion has shifted toward a more pro-life position, advocates of abortion and, to a lesser extent, advocates of destructive and immoral research on human life at its earliest stages have grown increasingly strident in their attempts to force pro-life healthcare workers and hospitals to either compromise their convictions or leave the medical profession. For example, in the name of "ensuring reproductive freedom," abortion advocates are actively campaigning to coerce conscience. They are lobbying for legislation, pressuring medical schools and medical students, and seeking to force insurance companies to support their agenda.

 

Increasingly, this battle over religious freedom and healthcare rights of conscience will be fought in state legislatures across the country. In 2007, more than 100 bills concerning the rights of conscience of healthcare providers were introduced and debated in 36 states.

 

Broad Rights of Conscience Protection for Healthcare Providers

 

At least five states -- including Michigan, Missouri, Rhode Island, South Carolina, and Vermont -- considered measures providing broad protection for healthcare providers. The majority of these bills sought to protect individual providers and private and/or religiously-affiliated hospitals from performing any medical procedures that violate their individual or corporate beliefs.

 

Rights of Conscience Legislation: Abortion

 

At least four states -- including Illinois, North Carolina, New Jersey, and West Virginia -- considered measures allowing healthcare providers to conscientiously object to participate in abortions.

 

Rights of Conscience Legislation: Contraception 

 

Indiana considered a measure allowing healthcare providers to conscientiously object to prescribing or dispensing artificial contraception.

 

Comprehensive Rights of Conscience Protection for Pharmacists

 

At least four states -- including Missouri, South Carolina, Texas, and West Virginia -- considered measures to allow pharmacists and/or pharmacies to conscientiously object to dispensing artificial contraception. However, Texas's measure stipulated that objecting pharmacists and pharmacies must enact measures to "ensure patient access."

 

Denial of Rights of Conscience: "Compulsion" Bills

 

In recent years, a number of state legislatures have specifically targeted the rights of conscience of individual healthcare providers and payers to decline to participate in abortions or to dispense abortifacients and/or artificial contraception.

 

Abortion:

New York considered two measures that, in practice, would force healthcare providers and payers to participate in, refer for, and facilitate abortions. One measure would have required hospitals receiving funds under the public health law and providing resident training in obstetrics, gynecology, internal medicine, or women's health to provide training in abortion, either on-site or off-site. It also sought to require training in all methods of contraception and sterilization. While failing to grant affirmative protection for any programs or facilities, the measure admits that some residency programs might have a conscience objection and requires those programs to ensure that its students receive training in abortion complications and that its non-objecting students can receive abortion training at another institution. The bill did purport to provide some degree of conscience protection for medical residents.

 

A second measure sought to require all managed-care providers to provide or arrange for so-called "reproductive services," including abortion, for all enrollees.

 

Pharmacists and Pharmacies:

Eleven states -- including Arizona, Missouri, New Jersey, New York, Oklahoma, Pennsylvania, Texas, Virginia, and West Virginia -- introduced measures forcing pharmacists and/or pharmacies to dispense contraception and/or emergency contraception without regard to conscience rights or concerns.

 

Measures in other states -- including New Jersey, Oklahoma, and Texas -- specifically purported to require pharmacists and/or pharmacies to dispense emergency contraception.

 

Finally, in Georgia and Michigan, measures calling on the U.S. Congress to pass the Prevention First Act, which includes a national contraceptive mandate, and a national mandate for emergency contraception for sexual assault victims were debated.