Rebekah Durham, Associate Member, University of Cincinnati Law Review
“The one thing that doesn’t abide by majority rule is a person’s conscience.” Harper Lee wrote these words in To Kill A Mockingbird recognizing that following one’s conscience is a higher calling than any dictates of society. Today, federal and state laws aim to protect the duty that each person owes to her conscience by allowing physicians to refuse to participate in medical procedures that violate their moral or religious principles. This rebuttal assumes the facts presented in the April 8, 2021 University of Cincinnati Law Review blog article titled “Is the Church Amendment Constitutional?” and seeks to defend the constitutionality of federal and state conscience laws.
A. Conscience Clause Legislation
Both at the federal and state levels, a variety of laws are in place to protect the conscience rights of doctors, nurses, pharmacists, and even taxpayers who object on religious or moral grounds to the performance of an abortion. Federal conscience laws generally deal with appropriations of federal funding, while state laws protect against a broader range of penalties, including civil liability, criminal prosecution, and loss of licensure.
At the federal level, the Church Amendments, as well as the Weldon, Hyde, and Coats-Snow Amendments, protect the conscience rights of various different actors in the arena of abortion. The Church Amendments were the first, and they protect the individual conscience rights of doctors by providing that individual physicians or entities that receive federal funding are not therefore required to perform abortions or sterilization procedures that violate their conscience. The Hyde Amendment, passed in 1976, prevents federal taxpayer funding from subsidizing abortion. The Coats-Snow Amendment prohibits any local, state, or federal government entity from discriminating against a healthcare provider because it does not provide abortions. Similarly, the Weldon Amendment prohibits funding from the Department of Labor, Department of Health and Human Services, or Department of Education to any government agency or program that discriminates on the grounds of not providing abortions.
At the state level, 46 states have enacted conscience legislation that permits healthcare providers or individual physicians to refuse to provide abortion services on the basis of conscience. Some states include sterilization and contraception services in their conscience exemption, and a few states limit the right to refusal to only private healthcare providers. In general, however, the vast majority of states have their own individual conscience protections on top of the federal statutes.
B. Case Law
Conscience legislation began to proliferate soon after Roe v. Wade was decided in 1973. Less than a year after Roe, Congress passed the Church Amendments, and it did not take long before the effect of the Amendments was felt in the courts. In November 1974, the Ninth Circuit considered the case of an Oregon woman who sought a writ of mandamus against a hospital that refused to perform a sterilization procedure on her. The Ninth Circuit found that, because of the Church Amendments, the hospital was not acting “under color of state law” when it refused the procedure, and therefore the Court lacked jurisdiction to issue a judgment against the hospital. Even though recipients of government funding are generally considered to be acting under the authority of the state, the Ninth Circuit found that in this scenario, Congress explicitly chose not to designate healthcare providers as state actors.
In its opinion, the Ninth Circuit looked to language that the Supreme Court used one year earlier in Doe v. Bolton, the companion case of Roe v. Wade. When Bolton was decided, the Church Amendments had not yet been enacted, but some states had their own individual conscience laws already. The Court in Bolton struck down a Georgia statute that criminalized abortion, but in doing so it noted that this decision would not require any hospital or member of the medical staff to participate in abortion procedures against their moral or religious beliefs. The Court stated: “the hospital itself is otherwise fully protected. Under [Georgia law], the hospital is free not to admit a patient for an abortion. . . Further, a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure.” Not only did the Supreme Court refrain from invalidating the Georgia state conscience laws, it relied on their existence to determine that the rest of the Georgia statute could be struck down.
Perhaps the most well-known federal regulation concerning abortion is the Hyde Amendment. While not technically conscience legislation, a major driving force behind the amendment was the notion that “taxpayers ought not to be compelled by the federal government to finance abortions which were repugnant to them on religious or moral grounds.” Passed less than five years after Roe was decided, the Hyde Amendment prevents federal tax dollars, including Medicaid funding, from subsidizing abortion procedures. The Court considered the amendment’s constitutionality in the 1980 case Harris v. McRae, in which a class action was brought on behalf of all indigent pregnant women in New York challenging the Hyde Amendment under the Due Process Clause and the Establishment Clause.
The Harris Court largely based its decision on a case decided three years earlier that upheld a Connecticut regulation very similar to the Hyde Amendment. In that case, Maher v. Roe, the Supreme Court outlined the precise nature of the right recognized by Roe v. Wade. It identified that right as the “constitutionally protected interest ‘in making certain kinds of important decisions’ free from governmental compulsion.” Importantly, the Court then went on to say that “Roe did not declare an unqualified ‘constitutional right to an abortion.’” Essentially, Maher was defining the Roe decision as a limitation on expansive government interference, not an affirmative obligation placed upon the government to provide women with the resources to obtain an abortion.
Building on this language from Maher, the Court in Harris upheld the constitutionality of the Hyde Amendment, holding that the restriction of funding did not constitute placing an obstacle in the way of a woman seeking an abortion. The Court explained that, “although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation.” Again, the Court emphasized the difference between active government interference, which Roe prohibited, and placing an obligation on the state to affirmatively facilitate abortions, which Roe did not do. Since Harris, the Hyde Amendment has continued to limit federal funding of abortion to this day.
This Section will discuss three reasons why the Church Amendments and other similar conscience legislation are both constitutional and critical. First, this Section will argue that conscience clauses protect a fundamental constitutional right. Next, this Section will discuss why conscience clauses have been upheld in the Supreme Court on multiple occasions. Finally, this Section will assess why conscience legislation does not create an undue burden under the Casey standard.
A. Conscience Legislation Safeguards a Fundamental Constitutional Right
The issue of conscience legislation versus a woman’s access to abortion is not an issue of a statutory conscience right versus constitutional freedom of choice. Rather, it is the interaction of two constitutional interests: liberty of choice and freedom of conscience. James Madison is credited with first identifying the right to conscience as fundamental and inalienable, “changing [the Virginia Declaration of Rights] from a mere statement of the principle of tolerance to the first official legislative pronouncement that freedom of conscience and religion are inherent rights of the individual.” For Madison, freedom of conscience and freedom of religion were inextricably intertwined. In passing the Church Amendments, “Congress quite properly sought to protect the freedom of religion of those with religious or moral scruples against sterilizations and abortions.” The objections of physicians to performing abortion procedures, when grounded in moral or religious qualms, should be counted with the same weight as the constitutional right to privacy recognized in Roe.
Furthermore, the abortion right itself has been characterized as a matter of conscience. In Planned Parenthood v. Casey, the Court depicted a woman’s right to choose whether to have an abortion as “nothing less than a matter of conscience.” According to the Casey Court, “[a] woman considering abortion faces ‘a difficult choice having serious and personal consequences of major importance to her own future — perhaps to the salvation of her own immortal soul.’” The weightiness of this choice, according to the Court, was outside of the arena in which the government might permissibly interfere. If each woman has the right to follow her conscience and make choices implicating the “salvation of her immortal soul,” then so should each physician.
B. Conscience Legislation Has Repeatedly Been Upheld by Courts
From the Georgia state conscience legislation in Bolton, to the Church Amendments in Chrisman, to the Hyde Amendment in Harris, the courts have consistently affirmed the constitutionality of conscience laws. Each of these cases involved a conscience protection to a different set of actors whose morals might be compromised by participating in an abortion. Furthermore, each of the major federal conscience laws take the form of funding restrictions, which were explicitly upheld by the Supreme Court in both Maher and Harris. The Harris Court was firm that the state is under no obligation to provide women, even women with limited financial means, with the resources necessary for them to procure an abortion.
Supreme Court recognition of a woman’s right to choose to end her pregnancy is rooted not in any merit of the abortion itself, but in the right to be free from government interference in private decisions. It is largely because of that rooting that conscience legislation and limits on state funding of abortion were upheld as constitutional when they were first passed in the 1970’s and 1980’s. If conscience clauses were now found to be unconstitutional, it would require the Court to completely reevaluate the reasoning behind its decisions in Roe and Casey.
C. Conscience Clauses Do Not Create an Undue Burden
Throughout the cases that challenged abortion rights and restrictions immediately following Roe v. Wade, the Supreme Court clearly defined the state’s duty towards a woman seeking an abortion. While the government may not place a substantial obstacle in her path, it is not obligated to give her the resources she needs to obtain one. The framework used today is that which was ultimately settled upon in Casey: that a law is void as an “undue burden” if its “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
Conscience legislation does not violate the undue burden standard. First and foremost, conscience legislation does not place any government-created obstacle in a woman’s path. The Harris Court was clear that the government is not obligated to remove obstacles that it did not create. By allowing individual physicians and healthcare workers to act consistently with their consciences, the government is not adding an obstacle, instead it is merely declining to wield the power of the state in order to remove one not of its own creation.
Second, even if conscience protections were considered a government-created obstacle, the burden created by them is not an undue one. As discussed previously, the right to conscience is not only a virtue that has been recognized since the founding of our country, but it was also a driving force behind the Court’s opinion in Casey that established the undue burden standard in the first place. Furthermore, the state has a valid and important interest in protecting unborn life. The state may use a variety of means to further that valid interest, including subsidizing childbirth, and promoting alternatives to abortion. Not every burden that could be placed on a woman is an undue one.
Conscience legislation was tested in the courts immediately after Roe v. Wade was decided, and it passed that test. Although conscience laws come in a variety of shapes and sizes and from a variety of sources, they all share the common trait of guarding a fundamental individual right. To repeal these provisions would go far beyond the Casey undue burden standard; it would be wielding the authority of the government to force healthcare workers to perform procedures that run against their beliefs. For many medical workers, this would be just as much an intrusion upon a personal decision of conscience as was the interference in a woman’s decision that Roe found unconstitutional.
 Harper Lee, To Kill A Mockingbird 120 (1960).
 See Nadia N. Sawicki, The Conscience Defense to Malpractice, 108 Cal. L. Rev 1255 (2020) (Professor Sawicki’s empirical study of state conscience law analyzes the variety of state conscience laws and the specific protections they contain: civil liability (such as medical malpractice), discipline, adverse employment action, discrimination, government action, educational institution action, criminal prosecution, funding, and licensure).
 42 U.S.C.S. § 300a-7.
 Harris v. McRae, 448 U.S. 297, 302, (1980).
 42 U.S.C. § 238n.
 U.S. Dept. of Health and Human Services, Conscience Protections for Health Care Providers, HHS.gov (March 22, 2018). https://www.hhs.gov/conscience/conscience-protections/index.html
 Guttmacher Institute, State Laws and Policies: Refusing to Provide Health Services (April 1, 2021) https://www.guttmacher.org/state-policy/explore/refusing-provide-health-services .
 Nadia N. Sawicki, The Conscience Defense to Malpractice, 108 Cal. L. Rev 1255 (2020).
 Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir. 1974).
 Id. at 309-10.
 Id. at 315.
 Id. at 310. (“Section 401(b) was clearly intended by Congress to prevent suits such as that advanced by Appellant.”)
 Id. at 312 (citing Doe v. Bolton, 410 U.S. 179 at 197-98 (1973)).
 Bolton, 410 U.S. at 197-98.
 Id. at 198. (“These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital.”)
 Zbaraz v. Quern, 596 F.2d 196, 200 (7th Cir. 1979).
 The Hyde Amendment is a rider to the annual Congressional appropriations bill that directs funding to the Department of Labor, the Department of Health and Human Services, and the Department of Education. Thus, the Hyde Amendment must be re-approved every year, and its exact wording has varied on occasion. See also Michael J. New, Hyde @ 40: Analyzing the Impact of the Hyde Amendment, Charlotte Lozier Institute, On Point Series 12 (2016). Available at: https://s27589.pcdn.co/wp-content/uploads/2016/09/OP_hyde_9.28.3.pdf
 Harris v. McRae, 448 U.S. 297, 302 (1980).
 Id. at 304.
 Maher v. Roe, 432 U.S. 464 (1977).
 Id. at 473-74.
 Id. at 473.
 Harris v. McRae, 448 U.S. 297, 316-17 (1980).
 Id. at 316.
 Id. (“[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. … The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.”)
 Julie Rovner, Abortion Funding Ban Has Evolved Over the Years, NPR.org (Dec. 14, 2009) https://www.npr.org/templates/story/story.php?storyId=121402281?storyId=121402281.
 Everson v. Bd. of Educ., 330 U.S. 1, 34, (1947) (Jackson, J., dissenting).
 Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 312 (9th Cir. 1974).
 Planned Parenthood v. Casey, 505 U.S. 833, 916 (1992).
 Id. (“The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual’s freedom to make such judgments.”)
 Roe v. Wade, 410 U.S. 113, 153 (1973). (“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”)
 Planned Parenthood v. Casey, 505 U.S. 833, 843 (1992).
 Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (“Roe’s essential holding, the holding we reaffirm, has three parts. . . third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”)
 See supra note 36.