Beyond Religious Refusals: The Case for Protecting Health Care Workers’ Provision of Abortion Care

Abstract

This article seeks to explore the question of whether and to what extent conscience-based employment protections available to those medical professionals opposed to the provision of abortion care should also be available to health care professionals who seek, based on their religious or moral beliefs, to affirmatively provide abortion care at religiously affiliated medical facilities. Part I examines the prevalence of religiously affiliated medical institutions that refuse to provide abortion care and the ways in which these prohibitions violate the consciences of some health care professionals who seek, as a matter of religious or moral conviction, to provide abortion care to their patients. Part II examines whether existing employee legal protections such as Title VII of the 1964 Civil Rights Act or the Church Amendment, both of which prohibit various forms of employment "discrimination" based on moral, ethical, or religious beliefs, can be used to protect health care providers’ affirmative right to provide, as a matter of conscience, abortion care. While both laws have been used to protect employees’ conscience-based refusals to provide reproductive health care, Part II explores whether and to what extent these same laws could also provide meaningful remedies for medical professionals who seek to provide conscience-based abortion care. Recognizing that existing employment conscience protections for employees seeking to provide abortion care are in some ways limited, Part III briefly concludes that policymakers and courts must begin to recognize that the conscience-based provision of abortion care can be rooted in beliefs held with a strength equal to the beliefs underlying the conscience-based refusal of such care, and as such must craft and enforce existing laws to provide parallel protection for both.