Conscience and Refusal Clauses

“Conscience” or “Refusal” laws permit people and organizations, primarily health-care providers and institutions, to refuse to provide certain types of health care services under the guise of religious freedom. (These laws also permit religious organizations, and in some cases civil servants and others, to discriminate against LGBTQ people based upon a moral or religious opposition to homosexuality. A more detailed discussion of how conscience and refusal laws result in discrimination against LGBTQ people—including a discussion of a law in Mississippi, HB 1523, which permits businesses and government workers to use religious objections to deny service to LGBTQ people—can be found here.)

The details of these laws vary between jurisdictions, but their basic purpose is to permit health-care providers, health-care institutions, pharmacists, and pharmacies to refuse to provide abortion, sterilization, contraceptive services, training, and coverage under the guise of religious freedom. Without these so-called conscience or refusal clauses, such refusal would in many cases amount to unlawful, or at the very least, actionable conduct.

With regard to emergency contraception, states have enacted laws that allow pharmacists and pharmacies to refuse to fill contraceptive prescriptions and/or provide emergency contraception. In addition, states have written conscience clauses broadly in order to exempt pharmacists and pharmacies from laws requiring the provision of emergency contraception.

Conscience and refusal clauses negatively impact women in several ways. In many cases, they hinder or prevent access to essential reproductive health care. This is particularly harmful to low-income women and women who live in rural areas without multiple options for access. In addition to refusing to provide these services, some providers will also refuse to refer these women to providers who do. For example, rape victims have been denied emergency contraceptives and referrals to providers that would provide emergency contraceptive, resulting in no access at all.

In order to protect access to reproductive health services, some states have tried to enact laws that impose a duty on pharmacists to dispense emergency contraception, but federal courts have found that these laws hinder the free exercise of religion and discriminate based on religious beliefs in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Many conscience and refusal clauses, like other laws created to prohibit access to reproductive health care, are based on model legislation drafted by Americans United for Life and similar anti-choice organizations as part of a coordinated effort to chip away at reproductive health rights at the state level.

Examples of Conscience and Refusal Clauses (last updated September 12, 2018)

Federal laws:

In 1973, Congress enacted the Church Amendment, 42 U.S.C. § 300a-7 allowing health-care organizations that receive federal funds to refuse to provide abortion or sterilization services if to do so would be against their religious or moral beliefs.

In 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), a statute which prohibits a government from substantially burdening religious freedom without a compelling justification for doing so. RFRA law became a statutory model for those with religious objections to laws of general applicability to avoid compliance based on religious objection.

In 1996, Congress passed the Coats Amendment which protects federally funded government entities or individual physicians from discrimination if they refuse to provide or undergo abortion medical training or referrals to institutions that do. The amendment also allows such entities to maintain their legal status, accreditation, and federal funding. As a result, licensed obstetrics and gynecology medical providers may not have access or may be exempt from training in abortion and related procedures despite professional standards deeming these procedures essential medical knowledge.

Recently, conscience and refusal clause legislation has also been applied to insurance coverage. Since the enactment of the Patient Protection and Affordable Care Act (ACA), states have used claims of conscience to pass legislation that allows qualified health-care plans to opt out of providing abortion coverage. In addition, both for-profit and non-profit organizations are using claims of conscience in their objection to providing contraceptive coverage under the ACA. In June 2014, the U.S. Supreme Court in Burwell v. Hobby Lobby said that the definition of “person” in the Religious Freedom Restoration Act (RFRA) includes “closely held” corporations, therefore allowing these for-profit businesses to opt out of contraceptive coverage.

State Laws:

States have also adopted many conscience and refusal clauses. According to the Guttmacher Institute, 46 states currently allow some health-care providers to refuse to provide abortion services; 44 states allow health-care organizations to refuse to provide abortion services, 13 of which limit the exemption to private institutions and one limits it to religious institutions; 12 states allow health-care providers to refuse to provide some contraceptive services, while nine states allow health-care providers to refuse to provide all contraceptive services; eight states allow health-care institutions to refuse to provide services related to contraception, five states limit the exemption to private entities; and six states expressly allow pharmacists to refuse to dispense contraceptives. (Six additional states have broadly worded refusal clauses which do not specifically include pharmacists, but may nonetheless apply to them, according to the Guttmacher Institute.)

In addition, 21 states have passed RFRA laws.

 

Laws