Is the Church Amendment Constitutional?

Photo by James Coleman on Unsplash

Sarah K. Simon, Associate Member, University of Cincinnati Law Review

I. Introduction

In 2021, if a woman goes to a public hospital seeking an abortion, any physician at the hospital can refuse to perform the abortion for moral or religious reasons under the Church Amendment, passed by Congress in 1973 shortly after Roe v. Wade was decided.[1]  The Church Amendment permits providers at public hospitals to decline to perform an abortion if it is against their religion or moral beliefs. As of 2013, forty-seven states have passed laws modeled after the Church Amendment known as “conscience clauses” that enable health care providers to deny women abortions.[2]

This article will answer the question: Can the potential to deny abortion through the Church Amendment coexist with the right to an abortion?  Parts I and II of this article will examine the legal background of the right to an abortion and the Church Amendment. Part III discusses why the Church Amendment is unconstitutional. Part IV concludes with predictions about the future of conscience clauses.

II. The Right to Abortion

In Roe v. Wade, the Supreme Court held that a Texas law that criminalized abortion was unconstitutional.[3] Although the Constitution does not specially mention the right to privacy, the Court reasoned that “zones of privacy” stemming from previous decisions regarding the Ninth and Fourteenth Amendments gave women the right to an abortion.[4] However, the right to an abortion is not absolute: it is limited by the State’s interest in protecting health, preserving medical regulations, and safeguarding potential life.[5]

A State may limit the right to an abortion when these “interests become sufficiently compelling.”[6] The Court defined this turning point as when the third trimester begins because that is when the fetus becomes viable.[7] The Court held the State can limit the right to an abortion or prohibit abortion once the fetus is viable.[8] During the second trimester, before viability, the State can regulate abortion to protect the mother’s health, but these regulations must be reasonable.[9]

Approximately twenty years after Roe, the Court limited the right to abortion in Planned Parenthood v. Casey.[10] In Casey, Planned Parenthood challenged the constitutionality of 5 parts of Pennsylvania’s abortion law.[11] The Court analyzed the provisions and created the undue burden standard.[12] Under this standard, if a regulation’s “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion,” the regulation is void as an undue burden.[13] The Casey precedent applies to future abortion regulations and requires the Court to ask if the regulation creates an “undue burden.”[14]

III. The Church Amendment and Abortion

In 1973, in response to Roe v. Wade, Congress passed the Church Amendment.[15] The Church Amendment allows hospitals that receive government funding to “refuse to provide abortion or sterilization if such services are contrary to their religious or moral beliefs.”[16] Under the Church Amendment, the Government may not withhold financial support from medical providers that choose not to undertake abortions.[17] The Amendment also prevents health care entities from discriminating against those doctors who choose not to perform abortions for religious or moral reasons.[18]

IV. Is the Church Amendment Constitutional?

The Church Amendment conflicts with the right to an abortion and intrudes on the doctor patient relationship. First, the Church Amendment permits providers to deny abortions for religious or moral reasons in violation of Planned Parenthood v. Casey.[19] In Casey, the Court held that if a regulation’s “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion,” the regulation is void as an undue burden.[20] Under Casey, the Church Amendment likely constitutes an undue burden on a woman’s right to obtain an abortion. The right of refusal that providers have under the Church Amendment is de facto a substantial obstacle as it prevents women from being able to obtain an abortion. [21]Depending on the circumstances, the Church Amendment could rise to an undue burden on the right to obtain an abortion.  

Second, allowing doctors to refuse to perform an abortion for moral or religious reasons restricts a patient’s ability to choose their provider. Patients’ choice of provider is already limited by insurance companies. Insurance companies confine patient choice through in network and out of network providers. In network providers contract with the insurance company to provide patients lower rates and can only charge the agreed upon price.[22] Out of network providers typically cost more and the patient has to pay for what their plan does not cover.[23] Most patients will not visit out of network providers because of the cost. If a patient’s doctor refuses to perform an abortion, the patient has to find a new provider and the provider must be approved by their insurance company.

Third, patient choice of care is also likely to become further limited by the expected shortage of physicians. By 2033, the United States will have “a shortage of between 54,100 and 139,000 physicians.”[24] Allowing doctors to conscientiously object to performing abortions diminishes the patient’s access to medical care as the number of doctors are declining.

Fourth, allowing doctors to object to abortions constitutes a denial of adequate medical care in states with low access to abortion in violation of Casey. As of 2019, six states only have one abortion clinic.[25] If a woman in one of these states cannot get to an abortion clinic, she will have to go to a public hospital. At the hospital, she could be denied an abortion if her doctor refuses to perform one under the Church Amendment. By potentially preventing women from obtaining an abortion in states with already low access to abortion clinics, the Church Amendment creates a substantial obstacle in her path in violation of Casey. Therefore, the Amendment—and subsequent “conscience clauses” as passed by various states—should be void as undue burdens because they create substantial obstacles for women who need an abortion by preventing them from getting an abortion closer to where they live.

V. The Future of Conscience Clauses

Conscience clause legislation proliferates under Republican administrations, and contracts under Democratic administrations.[26] President Bush broadened the reach of the Church Amendment, and President Obama narrowed the provision to only include abortion and sterilization.[27] President Trump increased the reach of conscience clauses, but President Biden could undo these laws.[28] However, whether or not a patient’s doctor can refuse to perform an abortion for religious or moral reasons should not depend on who is in office. The statutory right to decline to perform an abortion should give way to the constitutional right to an abortion.

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[1] Claire Marshall, The Spread of Conscience Clause Legislation, 39 Hum. Rts. 15, 15 (Jan. 2013).

[2] Marshall, supra note 1.

[3] Roe v. Wade, 410 U.S. 113, 114 (1973).

[4] Id. at 152-153.

[5] Id. at 154.

[6] Id.

[7] Id.

[8] Id. at 163-164.

[9] Id. at 163.

[10] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 837 (1992).

[11] Id. at 833.

[12] Id.

[13] Id.

[14] Id.

[15] Jody Feder, The History and Effect of Abortion Conscience Clause Laws, CRS Rep. for Congress (Jan. 2005).

[16]Marshall, supra note 1.

[17] Tim Sookram, Tipping the Balance: the Conscience Rule, Religious Freedom, and Health Care, 18 UNC First Amendment L. Rev. (2019), https://firstamendmentlawreview.org/2020/02/03/tipping-the-balance-the-conscience-rule-religious-freedom-and-health-care/.

[18] Feder, supra note 16.

[19] Marshall, supra note 1.

[20] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 837 (1992).

[21] Marshall, supra note 1.

[22] Cigna, In-Network vs. Out-of-Network Providers, Cigna (2020), https://www.cigna.com/individuals-families/understanding-insurance/in-network-vs-out-of-network.

[23] Id.

[24] Patrick Boyle, U.S. Physician Shortage Growing, Association of American Medical Colleges (June 26, 2020), https://www.aamc.org/news-insights/us-physician-shortage-growing.

[25] Holly Yan, These 6 States Have Only 1 Abortion Clinic Left, CNN (June 21, 2019), https://www.cnn.com/2019/05/29/health/six-states-with-1-abortion-clinic-map-trnd/index.html.

[26] Ronit Y. Stahl & Ezekiel J. Emanuel, Physicians, Not Conscripts, 376 New Eng. J. Med. 1380, 1381 (2017).

[27] Id.

[28] Id.