Conscience claims after Roe v. Wade
Fifteen years ago, we reported that 16% of doctors in the United States would neither discuss abortion with patients nor refer their patients for one. We defended the right of these doctors to practice according to their conscientiously held beliefs.
Many people disagreed our tolerant response to the doctors’ conscience claims. Ross and Clayton wrote: “Physicians must not be permitted to disavow responsibility on the grounds of conscientious objection. Savalescu and Schuklenk opined, wrote, “If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.” Brock argued that physicians should lose their license if they are unwilling to provide or refer their patients with legally available services.
Tolerance prevailed. No doctors were forced to refer patients for abortion and no doctors lost their licenses.
This approach reflected a tolerance for diversity of conscientious beliefs that is deeply rooted in the political traditions and laws of the United States. The American tradition of tolerance for minority religious views goes back at least to George Washington who believed that, “…the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire that the laws may always be…extensively accommodated to them.” Nussbaum described the American approach as one “that respects people’s committed search for a way of life according to their consciences.”
These political traditions regarding conscience were made explicit in the 1993 Religious Freedom Restoration Act (RFRA). RFRA asserted that deeply held religious beliefs could only be overridden “to further a compelling governmental interest” and, even then, the proposed infringement on religious liberties should be “the least restrictive means of furthering that compelling governmental interest.”
Now, after the Supreme Court decision in Dobbs v. Jackson, the power dynamics of conscience claims have changed. In many jurisdictions, abortion is now illegal and it may also be illegal to even discuss termination of pregnancy as an option or to refer patients to willing providers.
In this new environment, providers may invoke conscience claims to protect their right to counsel and refer patients. Those beliefs and practices are as deeply rooted in religious traditions as are the beliefs of many about the sanctity of fetal life. They deserve the same respect as was accorded to doctors whose conscientious beliefs prohibited discussion or participation in abortion decisions.