The Supreme Court’s recent ruling against a group of doctors who oppose abortion for religious reasons may, in the long run, come to be seen as a big win for doctors who oppose abortion for religious reasons.
Confused? Let me explain.
The June 13 ruling protecting access to an abortion pill called mifepristone included a long reflection on conscience rights.
Justice Brett Kavanaugh, who was writing for a unanimous court, said that doctors with moral objections to a procedure do not need to perform it, even when other doctors aren’t readily available.
“Federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences,” the majority opinion said.
What it didn’t say is that this characterization of conscience protections is somewhat controversial.
For years, legal experts have been debating how to honor religious freedom without harming patients in need of care. Now, the court seems to have thrown its support behind those who say conscience protections should always win out.
“Essentially, if you have objections to abortion, this could authorize not taking someone’s blood pressure, not transfusing them if they need blood, even not bringing them a pillow while they’re in a hospital bed,” said Liz Sepper, a law professor at the University of Texas, to Politico.
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Conscience protections in health care
Debates on conscience protections for doctors often center on the Church Amendments, which were enacted in the 1970s as part of a set of funding rules.
The Church Amendments prohibit the government from requiring those who receive federal funds to perform abortion or sterilization procedures. They also prohibit hospitals that receive federal funds from discriminating against providers who won’t take part in these procedures for moral or religious reasons.
In the abortion pill ruling, Kavanaugh highlighted the Church Amendments’ role in the abortion debate, which wasn’t surprising. What was surprising, at least to some observers, was what he said about their scope.
The Church Amendments “allow doctors and other healthcare personnel to ‘refus(e) to perform or assist’ an abortion without punishment or discrimination from their employers. And the Church Amendments more broadly provide that doctors shall not be required to provide treatment or assistance that would violate the doctors’ religious beliefs or moral convictions,” he wrote.
He added that federal conscience protections “encompass the doctor’s beliefs” rather than a specific set of procedures.
To be clear, Kavanaugh didn’t come up with his claims about conscience protections on his own. U.S. Solicitor General Elizabeth Prelogar shared them during oral arguments as part of her effort to discredit claims made by the religious doctors who wanted to limit access to the abortion pill.
“The most relevant Church Amendment provision ... says that a doctor shall not be required to perform or assist in any part of the healthcare program that would violate the doctor’s religious or moral beliefs. So it’s tied to the nature of the doctor’s beliefs rather than particular procedures,” Prelogar said.
Reactions to the abortion pill ruling
Prelogar’s comments may have won the abortion pill case for the Biden administration, but they could complicate the administration’s efforts to limit conscience protections in other contexts, like situations when a doctor is refusing to treat a transgender patient.
The ruling could also make it harder to guarantee access to an abortion in rural areas, Sepper said. Kavanaugh wrote that there are strong conscience protections even in “health care deserts.”
These potential outcomes help explain why some opponents of the abortion pill celebrated parts of the majority opinion in their statements on the case.
“It’s notable that the Court went out of its way to underscore the importance of conscience rights and say that existing federal law protects rather than coerces pro-life doctors,” said Carrie Severino, president of JCN. “Hospitals can no longer hide behind specious legal arguments to strong-arm doctors, contrary to their consciences.”
The Supreme Court’s next abortion case
It will likely be several years before the significance of Kavanaugh’s claims about conscience protections are fully understood.
Much of the current litigation around abortion has to do with bans on the procedure, rather than situations in which a doctor with faith-based objections to abortion feels forced to participate in one.
But the Supreme Court may revisit the same ideas as soon as next week when it rules on its second abortion case of the current term, Moyle v. United States.
In it, the justices are considering what wins out when a federal law called the Emergency Medical Treatment and Labor Act, or EMTALA, comes into conflict with state-level abortion restrictions.
That law was referenced several times in the abortion pill ruling.
Kavanaugh wrote that doctors who oppose abortion should not be worried about the government or their employer using the act to overrule their concerns since the solicitor general said the act does not interfere with existing conscience protections.
“We agree with the Government’s view of EMTALA on that point. EMTALA does not require doctors to perform abortions or provide abortion-related medical treatment over their conscience objections,” Kavanaugh wrote.
In the Moyle case, as in the abortion pill case, abortion opponents raised concerns that the Emergency Medical Treatment and Labor Act would be used to force doctors with conscience objections to terminate pregnancies.
Prelogar said their fears were misguided during oral arguments, repeating what she’d said during the abortion pill case.
“Our position is that EMTALA does not override either set of conscience protections. So, if an individual doctor has a conscience objection to providing pregnancy termination, EMTALA itself imposes obligations at the entity level, and the hospital should have plans in place to honor the individual doctor’s conscience objection while ensuring appropriate staffing for emergency care,” she said.
If the Supreme Court sides with the Biden administration in Moyle, it will almost certainly reference Prelogar’s comments on conscience protections in the majority opinion.
