Rachel Harp, Associate Member, University of Cincinnati Law Review
The majority of states afford healthcare providers (“HCPs”) with a conscientious objection option for particular healthcare services. These legislative conscience clauses give HCPs the right to refuse to provide certain healthcare services against the provider’s religion, morals, philosophy, or other values. Typically targeting abortion and women’s access to contraception, these conscience clauses were initially enacted after the Supreme Court’s recognition of a woman’s right to choose in Roe v. Wade. Since 1973, conscience clause legislation has grown to cover immunizations, certain types of research, end-of-life scenarios, and even other fields like social services.
Republican Kentucky State Senator Stephen Meredith recently proposed a bill that would provide HCPs in the Commonwealth with broad conscientious objections and generous remedies. The Arkansas legislative body passed a nearly identical bill.
Part II of this article will discuss federal protections for patients, the relevance of the Free Exercise Clause in the context of conscience legislation, and Kentucky’s Senate Bill 83. Part III will examine the constitutionality of conscience clauses for healthcare providers under principles of federalism, the First Amendment, medical ethics, and practical public health outcomes. Part IV emphasizes the importance court recognition of human rights over harmful religious practices.
A. Federal Protections for Patients
Patients have some federal protections. These include Title VI of the Civil Rights Act (“Title VI”) and the Americans with Disabilities Act (“ADA”). In sum, HCPs cannot deny treatment on the basis of the protected statuses of race, color, national origin, sex, age, or disability. States may provide further protections, but federal law controls in a conflict and provides minimum protections that states cannot abrogate. HCPs and healthcare facilities (“HCFs”) that receive federal funds (including Medicare) are subject to Title VI and the ADA and are not allowed to discriminate on the basis of protected statuses.
In June of 2020, the Supreme Court of the United States held that “sex” in Title VII of the Civil Rights Act (“Title VII”) (regarding employment protections) includes gender, sexual orientation, and sexual identity. Sex discrimination also encompasses discrimination based on gender stereotypes and sexual harassment. Justice Gorsuch, writing for the majority, used a textualist approach to give full meaning to sex discrimination, emphasizing that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” This interpretation likely applies to other sections of the same statute, particularly Title VI which uses identical language as Title VII. The Biden Administration will enforce Bostock’s interpretation of “sex” in other federal statutes as well, including the Federal Housing Act (“FHA”), Title IX of the Education Amendments (“Title IX”), and the Immigration and Nationality Act (“INS”).
The ADA provides further protections for persons with disabilities by providing protections for individuals that have a physical or mental impairment that substantially limits one or more major life activities, have a record of such impairment, or are regarded as having such impairment. Under the 2008 ADA amendments and subsequent regulations, disability is broadly defined to afford maximum protection.
There is no constitutional right to healthcare in the U.S., but patients do have privacy rights that the Supreme Court has recognized and reaffirmed. Patient autonomy is a cornerstone of healthcare, both legally and ethically—patients have a right to choose what happens to their bodies. States cannot infringe on the constitutional rights to marry, to have consensual sex with another adult, or to access contraception, nor can states impose an undue burden on a woman’s right to an abortion. Privacy rights are thus enshrined in the Bill of Rights and might provide further protections for patients.
B. The First Amendment: The Free Exercise Clause
The free exercise clause prohibits the federal government and the states from enacting laws that infringe upon the free exercise of religion. The free exercise clause is often in conflict with civil rights laws and cases, and the Supreme Court has yet to articulate a clear test for examining this tension. The Court has drawn a distinction between “beliefs” and “actions.” Beliefs are absolute and protected by the First Amendment, while practices and actions are not always protected. In making this distinction, the Court wanted to ensure that religious practices did not become superior to the law.
Free Exercise Clause jurisprudence began developing significantly in the mid-1960s when conscientious objectors to the military draft became prominent. The Court created tests such as the “parallel beliefs test,” where a court examines how sincere a belief is held by determining whether the belief asserted is parallel to a belief in an orthodox deity. While conscientious objectors were allowed to assert a variety of religious, philosophical, and even political beliefs, objectors could only assert a general objection to war, rather than opposing one particular war (such as the Vietnam War).
Both for-profit and non-profit organizations and businesses are afforded some conscientious objections under the Religious Freedom and Restoration Act (“RFRA”). The seminal case demonstrating this principle is Hobby Lobby Stores, Inc. v. Burwell. Hobby Lobby is a company owned by conservative Christians who objected to the Affordable Care Act’s (“ACA’s”) mandate on providing certain types of contraception insurance coverage to its employees on religious grounds. According to the Court, the mandate violated RFRA as a substantial burden on the free exercise of religion.
C. Kentucky’s Conscience Clause Bill
Titled the “Medical Ethics and Diversity Act,” Kentucky Senate Bill 83 would provide a broad conscientious objection option to HCPs, including public and private hospitals, medical clinics, professional associations, medical schools, physicians, nurses, medical and nursing students, psychologists, pharmacists, social workers, and more. The all-encompassing bill allows such institutions and professions to refuse to provide any type of healthcare service (including examinations, research, therapy, administering medications, counseling, and other services) that goes against the “conscience.” “Conscience” is defined as “the religious, moral ethical, or philosophical beliefs or principles.”
The bill also limits criminal and civil liability for HCPs, payers, and facilities. Disciplinary actions that can be taken by professional boards and licensing boards is also constrained when an HCP refuses service under this bill. Further, HCPs have a civil cause of action to recover damages and litigation costs and seek appropriate relief (such as reinstatement of license or board certification) if an HCP is disciplined in violation of this bill.
Since its introduction in February of 2021, there have been three amendments to the bill. It has been amended to broaden the class of individuals who are allowed to conscientiously object to include leadership staff, security guards, door keepers, state troopers, state park employees, and other “public servants.”
The bill is preempted by federal law, including Emergency Medical Treatment and Active Labor Act (“EMTALA”), meaning that generally HCPs and HCFs receiving federal funds must screen and stabilize patients in an emergency condition, regardless of any conscientious objection they may have to the patient or the patient’s care. The bill’s synergy with Title VI and the ADA is less clear.
Kentucky Senate Bill 83 sweeps too broadly and likely will conflict with Bostock and federal anti-discrimination law in practice. In giving “conscience” a malleable definition, the bill would allow HCPs and HCFs to refuse non-emergency treatment to an unmarried cohabitating couple, a patient wearing a political t-shirt or hat, and other reasons the HCP articulates. The HCP could not be punished for this, nor could the patient easily seek redress.
The federal definition of sex discrimination post-Bostock can be in conflict with the Free Exercise Clause of the First Amendment in practice. This Senate Bill highlights this conflict in a conservative Commonwealth. Though according to Bostock and the Biden Administration an HCP could not discriminate against LGBTQ+ patients, Senate Bill 83 finds a loophole by allowing HCPs to refuse treatment to patients for nearly any reason. This could take place in the form of blatant homophobia in direct violation of Title VI, or it could be more subtle by refusing to treat an individual who has had multiple sexual partners or refusing to prescribe hormone therapy.
The implications of the ADA on this bill are less clear. The ADA prohibits discrimination based on a disability. Disabilities that might be relevant to Senate Bill 83 include human immunodeficiency virus (“HIV”)-positive status, sexually transmitted diseases (“STDs”), and pregnancy complications. While the ADA protects individuals with these disabilities from discrimination, Senate Bill 83 might allow blatant or subtle discrimination against these patients by allowing HCPs to assert a religious or “philosophical” objection to treatment.
Federally unprotected statutes of individuals can also be denied healthcare, and under Senate Bill 83 the HCP or HCF could not be disciplined, nor would the patient be able to seek redress easily. Unprotected statuses could include marital status, parenthood, political affiliation, vaccine status, and more.
The progress of this bill and the nearly identical bill in Arkansas should be monitored to see how courts react to these state and federal law conflicts. Though federal law should control, Hobby Lobby will likely be invoked by courts to emphasize the importance of conscientious objections under the Free Exercise Clause. Kentucky’s Senate Bill is likely to pass both houses of the Kentucky General Assembly as Republicans and conservatives have a stronghold on the legislature. While Governor Beshear would likely veto the bill, the veto could easily be overridden.
While medical ethics recognizes conscientious objections, there have been many scholars that suggest that a calling to the profession should take precedence over personal preference. In other words, if an individual does not wish to treat members of the LGBTQ+ community, they should not become a physician. There is also the idea of a social contract between HCPs and HCFs and the general public. In many parts of Kentucky, there might only be one HCF in a community or accessible nearby. That HCF holds itself out as providing services that are relied upon by those in the surrounding area.
The detrimental impacts of this bill if it were to pass cannot be overstated. Conscience clauses have negative disproportionate impacts on vulnerable populations such as women, the LGBTQ+ community, people of color, people with disabilities, and rural communities. Kentucky is 44th in the nation in healthcare. Access to healthcare is minimal, particularly in rural areas of Eastern Kentucky. Kentucky is also a very conservative state. Minorities—especially the LGBTQ+ community—are already in danger in rural parts of the Commonwealth. This bill endangers minority communities even more by potentially eliminating their access to healthcare entirely. Further, many healthcare plans such as Health Maintenance Organizations (“HMOs”) only allow patients to choose from a list of pre-selected physicians. Many Kentuckians would thus be “stuck” with a certain HCP without many alternatives (if alternative HCPs in the community even exist).
The legal status of Kentucky’s and Arkansas’ conscientious objection legislation should be closely monitored, as both are incredibly all-encompassing. While patients have federal protections for privacy and protected statuses, Kentucky Senate Bill 83 seemingly ignores these federal laws in the name of the First Amendment. Senate Bill 83 is likely to pass, and the public health consequences of its passage will be abysmal. Reviewing courts should emphasize human rights by protecting individuals from discrimination in healthcare and other areas. While HCPs do have a constitutional right to free exercise of religion, the practices of these religious beliefs should not be absolutely protected, especially when these actions endanger other individuals by legitimizing discrimination in healthcare.
 Nancy Berlinger, Conscience Clauses, Health Care Providers, and Parents, Hastings Ctr. Bioethics Briefings (Sept. 21, 2015), https://www.thehastingscenter.org/briefingbook/conscience-clauses-health-care-providers-and-parents/; Refusing to Provide Health Services, Guttmacher Inst. (March 2021), https://www.guttmacher.org/state-policy/explore/refusing-provide-health-services#.
 Berlinger, supra note 1. See also S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 410 U.S. 113 (1973). See also sources cited supra note 1.
 See Berlinger, supra note 1; Erica Anderson, A Will to Die: The Constitutionality of Ignoring the Living Wills of Pregnant Persons, U. Cin. L. Rev. (March 11, 2021), https://uclawreview.org/2021/03/11/a-will-to-die-the-constitutionality-of-ignoring-the-living-wills-of-pregnant-persons/ (discussing the ability of a state to invalidate the living wills of pregnant persons); Mark Strasser, Article: Neutrality, Accommodation, and Conscience Clause Legislation, 8 Ala. C.R. & C.L. L. Rev. 197, 231-38 (2017) (discussing the constitutionality of religious conscience clauses that allow individuals to refuse to provide services to the LGBTQ community).
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021). See also Senate Bill 83, Kentucky Gen. Assemb., https://apps.legislature.ky.gov/record/21rs/sb83.html (last visited March 26, 2021).
 S.B. 289, 93d Gen. Assemb., Reg. Sess. (Ar. 2021). See also SB298 – To Create the Medical Ethics and Diversity Act, Arkansas State Legislature, https://www.arkleg.state.ar.us/Bills/Detail?ddBienniumSession=2021%2F2021R&measureno=SB289 (last visited April 7, 2021) (detailing the bill’s history and status).
 U.S. Const. amend. I.
 See U.S. Const. amend. I; S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 Reynolds v. U.S., 98 U.S. 145, 166-67 (1878).
 42 U.S.C. §§ 2000d et seq.; 42 U.S.C. §§ 12101 et seq. See also 42 U.S.C. §§ 18001 et seq. (The passage of the Affordable Care Act (“ACA”) in 2010 extended federal protections in Title VI to healthcare.); Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule, Dep’t of Health and Human Serv., https://www.hhs.gov/civil-rights/for-individuals/section-1557/summary/index.html (last visited March 24, 2021).
 42 U.S.C. §§ 2000d et seq.; 42 U.S.C. §§ 12101 et seq.
 U.S. Const. art. VI (the “Supremacy Clause”). See e.g. Colo. Rev. Stat. § 24-34-601 (2020) (extending protected classes to include marital status, sexual orientation, ancestry, and creed). See also Martin v. Hunter’s Lessee, 14 U.S. 304, 340-41 (1816) (emphasizing that in a conflict between state laws and federal laws or treaties, federal law controls under the Supremacy Clause).
 See Reynolds v. U.S., 98 U.S. 145, 166-67 (1878).
 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1747 (2020) [hereinafter Bostock] (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]”).
 Id. at 1743-45. See also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998) (holding that sexual harassment is discrimination based on sex); Phillips v. Martin Marietta Corp. 400 U.S. 524 (1971) (pur curiam) (holding that policies that have a disparate impact on one gender is discrimination based on sex); Los Angeles Dep’t of Water and Power v. Manhart, 43 U.S. 702 (1978) (holding that discrimination based on gender stereotypes and actuarial tables is discrimination based on sex).
 Bostock, 140 S. Ct. at 1737; id at 1738 (“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.”); id. at 1749 (“This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”).
 Id. at 1737-38, 1749; 42 U.S.C. §§ 2000d et seq.
 Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021).
 42 U.S.C. § 12102(1).
 See generally P.L. 110-325(2)(b)(5) (2008) (stating that the purpose of the 2008 amendments is to focus the courts’ analyses on whether a covered entity complied with the ADA and that whether an individual has an impairment should not be an extensive analysis); 29 C.F.R. § 1630.2.
 Wideman v. Shallowford Community Hospital, 826 F.2d 1030 (11th Cir. 1987) (holding that there is no constitutional right to medical services by a state or municipality); Roe v. Wade, 410 U.S. 113, 152-53 (1973) (“[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”).
 Roe, 410 U.S. at 152-53; Eisenstadt, 405 U.S. at 453; Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.”); Schoendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 129 (N.Y. 1914), aff’d, 149 App. Div. 915 (N.Y. Sup. Ct.) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body…”); Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 270 (1990) (emphasizing that the right to bodily integrity encompasses the right to refuse medical treatment); Chapter 2: Opinions on Consent, Communication, & Decision Making, Am. Med. Ass’n, https://www.ama-assn.org/system/files/2019-06/code-of-medical-ethics-chapter-2.pdf (last visited March 24, 2021).
 See generally Obergefell v. Hodges, 576 U.S. 644 (2015); Lawrence v. Texas, 539 U.S. 558 (2003); Eisenstadt, 405 U.S. at 453; Casey, 505 U.S. at 849, 874.
 Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (“[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion.”). See cases cited supra notes 20-21.
 U.S. Const. amend. I.
 Id.; id. amend. XIV (incorporating the First Amendment against the states).
 Bostock, 140 S. Ct. at 1754 (“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution [b]ut worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage.”); Obergefell, 576 U.S. at 679-80 (“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach [their] principles.”); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (“[W]hile those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy to deny protected persons equal access to goods and services”). See also Mark Strasser, Article: Neutrality, Accommodation, and Conscience Clause Legislation, 8 Ala. C.R. & C.L. L. Rev. 197, 197-98 (2017).
 Reynolds v. U.S., 98 U.S. 145, 166 (1878) (upholding a bigamy conviction for a practicing Mormon).
 Id. at 167.
 See generally Strasser, supra note 26, at 219-24.
 U.S. v. Seeger, 380 U.S. 163, 176 (1965).
 Id.; Welsh v. U.S., 342 U.S. 333, 342 (1970) (holding that those “whose conscientious objection to participation in all wars [that] is founded to a substantial extent upon considerations of public policy” qualify under the conscientious draft exemption.); Gillette v. U.S., 401 U.S. 437, 443 (1971) (holding that objectors opposing particular wars are not subject to exemption statute).
 See generally Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) and 42 U.S.C. § 2000bb-1.
 573 U.S. at 688-92.
 Id. at 700-702.
 Id. at 688-92.
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 See Senate Bill 83, Kentucky Gen. Assemb., https://apps.legislature.ky.gov/record/21rs/sb83.html (last visited March 26, 2021).
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021). See also 42 U.S.C. § 1395dd (“EMTALA”).
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021); 140 S. Ct. 1731 (2020); Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021); 42 U.S.C. §§ 2000d et seq.; 42 U.S.C. §§ 12101 et seq. See also 42 U.S.C. §§ 18001 et seq.
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021). See also Matt Jones (@KySportsRadio), Twitter (March 2, 2021), https://twitter.com/KySportsRadio/status/1366879395609255938 (Duke Law alum and Kentucky radio personality stating “you could be denied care…if you have on a MAGA hat, if you have an STD…anything that violates the “conscience” of the hospital or doctor…It’s awful and it very well may pass”).
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 See cases cited supra note 26; U.S. Const. amend. I.
 Bostock, 140 S. Ct. at 1747; Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021); S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 42 U.S.C. §§ 12101 et seq.
 Id.; 29 C.F.R. § 1630.2(i)(1) (organ system function including the reproductive system is a major life activity under the ADA); Bragdon v. Abbott, 524 U.S. 624, 640 (1998) (holding that plaintiff’s HIV-positive status was a disability because it substantially interfered with a major life activity).
 See sources cited supra note 53; S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).
 See id.; see also sources cited supra note 7.
 U.S. Const. art. VI; Martin v. Hunter’s Lessee, 14 U.S. 304, 340-41 (1816); 573 U.S. 682 (2014); U.S. Const. amend. I. See also cases cited supra note 26.
 Code of Medical Ethics Opinion 1.1.7, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/physician-exercise-conscience (last visited March 26, 2021); Udo Schuklenk, Conscientious objection in medicine: accommodation versus professionalism and the public good, 126 Brit. Med. Bull. 47 (2018).
 Schuklenk, supra note 58.
 Eileen Fry-Bowers, A Matter of Conscience: Examining the Law and Policy of Conscientious Objection in Health Care, 21 Policy, Pol., & Nursing Practice 120-26 (May 22, 2020), https://doi-org.proxy.libraries.uc.edu/10.1177%2F1527154420926156.
 See Health Maintenance Organization (HMO), HealthCare.gov, https://www.healthcare.gov/glossary/health-maintenance-organization-hmo/ (last visited March 28, 2021); Boyd v. Albert Einstein Med. Ctr., 377 Pa. Super. 609 (Pa. Super. Ct. 1988) (holding an HMO vicariously liable for a doctor’s medical malpractice because the doctor was acting as an agent of the HMO).
 See sources cited supra notes 6-7.
 See sources cited supra notes 21-25.
 See Reynolds v. U.S., 98 U.S. 145, 166-67 (1878); U.S. Const. amend. I; Lawrence Gostin, The “Conscience” Rule: How Will It Affect Patients’ Access to Health Services?, Journal of the Am. Med. Ass’n (JAMA) (May 20, 2019), https://jamanetwork.com/journals/jama/fullarticle/2734580. See also Hasan Shanawani, The Challenges of Conscientious Objection in Health care, 55 Journal of Religion and Health 384-93 (Feb. 29, 2016); Eileen Fry-Bowers, A Matter of Conscience: Examining the Law and Policy of Conscientious Objection in Health Care, 21 Policy, Pol., & Nursing Practice 120-26 (May 22, 2020), https://doi-org.proxy.libraries.uc.edu/10.1177%2F1527154420926156.