America’s medical conscience regime is broken. Doctors or nurses who conscientiously deny care get shielded from being sued, fired, or prosecuted — even if they don’t tell patients what their options are. Yet there’s no solicitude for clinicians who have equally moral reasons to deliver services their hospital or state restricts. This asymmetry selectively burdens providers and drives patients underground. Contested practices run the gamut: from abortion to aid-in-dying, from puberty blockers to conversion therapy, from opioids to ivermectin. Some the law permits; others it forbids. Some are safer, or cheaper. Others fall within the medical norm, rather than push its boundaries. These particulars matter. So does the fact that conscientious provision honors patients’ wishes, while conscientious refusal overrides them. A principled system would protect refusers less and providers more, with carve-outs for both tailored to distinct levels of authority: the employer and the government. Conscience exemptions from workplace policies demand clear disclosures and meaningful offsets: both to shore up patient access and to distance institutions from services they oppose. For civil or criminal violations, conscience should excuse partially at most. So no blanket immunity for malpractice or abandonment. A limited defense, for providers too, would mitigate punishments for supplying clinically reasonable care. The long-simmering tension between law and medicine has reached a boiling point. Relief requires equipping a diverse society and dynamic profession to navigate the controversies of our time and adapt to change from within.
Days after Texas banned most abortions, the Washington Post ran an op-ed called “Why I Violated Texas’s Extreme Abortion Ban.”1×1. Alan Braid, Opinion, Why I Violated Texas’s Extreme Abortion Ban, Wash. Post (Sept. 18, 2021, 4:01 PM), https://www.washingtonpost.com/opinions/2021/09/18/texas-abortion-provider-alan-braid [https://perma.cc/W62B-H9CU]. Dr. Alan Braid recounted that as a junior resident before Roe v. Wade2×2. 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). :
I saw three teenagers die from illegal abortions. One I will never forget. When she came into the ER, her vaginal cavity was packed with rags. She died a few days later from massive organ failure, caused by septic infection. . . . And that is why, on the morning of Sept. 6, [2021,] I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit.3×3. Braid, supra note 1.
The Texas Heartbeat Act,4×4. Texas Heartbeat Act, 2021 Tex. Gen. Laws ch. 62 (codified at Tex. Health & Safety Code Ann. §§ 171.201–.212 (West 2021)). also known as S.B. 8, authorizes private citizens to sue anyone who “aids or abets” an abortion after “cardiac activity” can be detected (usually at about about six weeks), before many women know they’re pregnant.5×5. See Tex. Health & Safety Code Ann. § 171.208(a)(2) (West 2021). Aiding-or-abetting laws apply to other medical professionals too, beyond just the doctor who performs an abortion. Nurses, anesthesiologists, and any others who take part in ending a pregnancy could also be taken to court. See id. § 171.208 (a)(1)–(2). Multiple $10,000 lawsuits6×6. See Ann E. Marimow, Texas Doctor Who Violated State’s Abortion Ban Is Sued, Launching Test of Constitutionality, Wash. Post (Sept. 20, 2021, 7:07 PM), https://www.washingtonpost.com/politics/courts_law/texas-abortion-doctor-sued/2021/09/20/f5ab5c56-1a1c-11ec-bcb8-0cb135811007_story [https://perma.cc/NP63-PCJ8]. forced Braid to refer hundreds of patients across the border to Oklahoma.7×7. See Caroline Kitchener, A Refuge for Texas Patients, Oklahoma Clinics Brace for Abortion Ban, Wash. Post (Apr. 9, 2022, 6:00 AM), https://www.washingtonpost.com/politics/2022/04/09/texas-abortion-ban-oklahoma [https://perma.cc/J96D-A5M2]. But on May 3, 2022, a day after the Supreme Court’s draft opinion leaked in Dobbs v. Jackson Women’s Health Organization,8×8. 142 S. Ct. 2228 (2022). Oklahoma enacted its own similar ban,9×9. See Okla. Stat. Ann. tit. 63, § 1-745.31 (West 2022). later piling on damages of $100,000 and adding up to ten years in prison.10×10. See 2022 Okla. Sess. Laws Serv. ch. 11 (West) (to be codified at Okla. Stat. Ann. tit. 63, § 1-731.4). Roe fell on June 24, 2022.11×11. See Dobbs, 142 S. Ct. at 2242.
Within weeks, more than a dozen states criminalized abortion with almost no exceptions.12×12. See Megan Messerly & Alice Miranda Ollstein, Abortion Access Crumbles: 4 More States Enact New Restrictions This Week, Politico (Aug. 25, 2022, 4:30 AM), https://www.politico.com/news/2022/08/25/abortion-access-restrictions-00053622 [https://perma.cc/XJ4K-3MSP]. Not for the ten-year-old rape victim in Ohio.13×13. See David Folkenflik & Sarah McCammon, A Rape, An Abortion, and a One-Source Story: A Child’s Ordeal Becomes National News, NPR (July 13, 2022, 10:28 PM), https://www.npr.org/2022/07/13/1111285143/abortion-10-year-old-raped-ohio [https://perma.cc/GAT6-Y4RS]; see also Marty Schladen, Affidavits: 2 More Pregnant Minors Who Were Raped Were Denied Ohio Abortions, Ohio Cap. J. (Sept. 22, 2022, 5:00 AM), https://ohiocapitaljournal.com/2022/09/22/affidavits-more-pregnant-minors-who-were-raped-denied-ohio-abortions [https://perma.cc/7CLE-U968]. Not for the Louisiana mother whose fetus was doomed by a fatal condition that prevents a skull from forming.14×14. See Ava Sasani & Emily Cochrane, “I’m Carrying This Baby Just to Bury It”: The Struggle to Decode Abortion Laws, N.Y. Times (Aug. 19, 2022), https://www.nytimes.com/2022/08/19/us/politics/louisiana-abortion-law.html [https://perma.cc/NG6L-HV45]. Similar cases are described in Bridget Grumet, Opinion, Under New Law, Women at Risk, Austin Am.-Statesman, Oct. 23, 2022, at B1; Julian Gill, Texas’ Abortion Laws Led to 3-Day Delay for Houston Woman’s Pregnancy Loss Treatment, Doctor Says, Hous. Chron. (Sept. 10, 2022, 7:55 AM), https://www.houstonchronicle.com/news/houston-texas/health/article/Waiting-in-vain-Texas-abortion-laws-stymie-17424262.php [https://perma.cc/2ASV-ATT8]. Not for the cervical cancer survivor, facing dangerous complications herself, forced to drive ten hours to New Mexico.15×15. See Mitchell Willetts, Texan Has Out-of-State Abortion to End Heartbreaking and Dangerous Pregnancy, She Says, Fort Worth Star-Telegram (July 3, 2022, 12:25 PM), https://www.star-telegram.com/news/state/texas/article263141343.html [https://perma.cc/QA2L-V6KN]. Not for the Texas woman, too sick to travel when she was turned away after her water broke, who nearly died.16×16. See Elizabeth Cohen & John Bonifield, Texas Woman Almost Dies Because She Couldn’t Get an Abortion, CNN Health (Nov. 16, 2022, 9:44 PM), https://www.cnn.com/2022/11/16/health/abortion-texas-sepsis [https://perma.cc/6YK8-4C6M].
Michigan’s Chief Medical Executive Natasha Bagdasarian explains that doctors are being forced “to choose between breaking” the law they’re bound to obey as citizens or the “oath we have taken on behalf of our patients.”17×17. Natasha Bagdasarian, Opinion, I’m the State’s Chief Medical Officer. Overturning Roe Threatens Public Health, Det. Free Press (June 27, 2022, 11:50 AM), https://www.freep.com/story/opinion/contributors/2022/06/26/supreme-court-abortion-ruling-roe/7724609001 [https://perma.cc/TXJ7-52B3]; see also Anita Wadhwani, In Open Letter, 700 Tennessee Healthcare Providers Call on Legislature to “Reconsider” Abortion Ban, Tenn. Lookout (Oct. 10, 2022, 6:00 AM), https://tennesseelookout.com/briefs/in-open-letter-700-tennessee-healthcare-providers-call-on-legislature-to-reconsider-abortion-ban [https://perma.cc/7AW2-EYKA] (decrying abortion ban for “forc[ing] health care providers to balance appropriate medical care with the risk of criminal prosecution”). Sherry Reddix from Mississippi, who recently graduated from medical school, vows to keep performing abortions “[u]ntil someone physically takes the tools out of my hand.”18×18. Christina Sturdivant Sani, The Potential End of Roe Won’t Stop This Abortion Provider-in-Training, Wash. Post Mag. (May 11, 2022, 1:22 PM), https://www.washingtonpost.com/magazine/2022/05/11/abortion-provider-in-training [https://perma.cc/8PL2-J82F]. New York clinician Linda Prine is using telehealth to prescribe medication by mail to patients in places that deny access.19×19. Emily Bazelon, Risking Everything to Offer Abortions Across State Lines, N.Y. Times Mag. (Oct. 7, 2022), https://www.nytimes.com/2022/10/04/magazine/abortion-interstate-travel-post-roe.html [https://perma.cc/H2K7-RZNN]. “I don’t want younger physicians to be embroiled in lawsuits or criminally charged. . . . Doctors like me who are at the end of our careers, we should be the ones to step up.”20×20. Id. One nurse reports that by September 2022, she was already “receiving bulk shipments of 150 abortion pills and consulting with women across eight states,” even though she could lose her license or “go to jail.”21×21. Caroline Kitchener, Covert Network Provides Pills for Thousands of Abortions in U.S. post Roe, Wash. Post (Oct. 18, 2022, 6:00 AM), https://www.washingtonpost.com/politics/2022/10/18/illegal-abortion-pill-network [https://perma.cc/53G5-CGXZ]; see also Stephania Taladrid, The Post-Roe Abortion Underground, New Yorker (Oct. 10, 2022), https://www.newyorker.com/magazine/2022/10/17/the-post-roe-abortion-underground [https://perma.cc/9JN3-6NZ4] (comparing Chicago’s Jane Collective that provided surgical abortions before Roe to networks like Las Libres and Plan C that connect abortion-pill providers in Mexico and abroad with Americans in states that banned abortion after Dobbs); infra note 559 and accompanying text.
Texas-based family-medicine doctor Bhavik Kumar says that “having to deny people the essential health care” they “seek in their time of need” isn’t just hard for providers like him to bear: “[W]e are forced to violate our conscience.”22×22. Examining the Harm to Patients from Abortion Restrictions and the Threat of a National Abortion Ban: Hearing Before the H. Comm. on Oversight & Reform, 117th Cong. 2 (2022) (testimony of Bhavik Kumar, Medical Director for Primary and Trans Care, Planned Parenthood Gulf Coast), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Dr.%20Kumar%20Testimony.pdf [https://perma.cc/YB6G-QHVX]. For obstetrician-gynecologist David Eisenberg from Missouri,23×23. The Daily, A Post-Roe America, Part 2: The Abortion Providers, N.Y. Times, at 20:54 (May 11, 2022), https://www.nytimes.com/2022/05/11/podcasts/the-daily/roe-v-wade-abortion-providers.html [https://perma.cc/PR8X-BKLP]. providing patients with abortion care is “a part of my moral and religious worldview.”24×24. Id. at 25:59. “I’m a conscientious provider.”25×25. Id.; see also infra notes 81–82, 164 and accompanying text.
Conscientious providers find scarce refuge in the manifold safeguards to practice medicine according to conscience.26×26. For the handful of exceptions, see infra notes 154–56 and 292–96 and accompanying text. Conscience clauses are broadly reserved for denials of care. Only refusers get immunity from torts like malpractice and breach of informed consent — they’re even exempt from crimes of endangering patients or abandoning them.27×27. See infra notes 130–37 and accompanying text. These one-way liability shields are mostly indifferent to whether patients can get treatment elsewhere.28×28. See infra notes 283, 304, 314, 325–28 and accompanying text. The federal government imposes just two limits: emergency room physicians can’t turn away patients who need urgent care; and no clinicians can discriminate based on sex, race, age, or disability. See infra notes 120–23 and accompanying text. So a hospital can deny emergency contraception.29×29. See Brownfield v. Daniel Freeman Marina Hosp., 256 Cal. Rptr. 240, 242 (Cal. Ct. App. 1989). A genetic counselor is free not to tell a patient about results she might rely on to decide to end a pregnancy.30×30. See Shea Bonine et al., Conscience Clauses in Genetic Counseling: Awareness and Attitudes, 30 J. Genetic Counseling 1468, 1469 (2021) (discussing conscience clauses in Oklahoma, Nebraska, and Virginia). A doctor could even decline cancer treatment to transgender patients.31×31. Recent civil rights protections might now prohibit such discrimination based on gender identity or sexual orientation. See Susan Donaldson James, Trans Man Denied Cancer Treatment; Now Feds Say It’s Illegal, ABC News (Aug. 7, 2012, 2:24 PM), https://abcnews.go.com/Health/transgender-bias-now-banned-federal-law/story?id=16949817 [https://perma.cc/7D39-2J5F]; cf. Abby Phillip, Pediatrician Refuses to Treat Baby with Lesbian Parents and There’s Nothing Illegal About It, Wash. Post (Feb. 19, 2015, 4:36 PM), https://www.washingtonpost.com/news/morning-mix/wp/2015/02/19/pediatrician-refuses-to-treat-baby-with-lesbian-parents-and-theres-nothing-illegal-about-it [https://perma.cc/UGH7-8UPL].
Conscientious refusers needn’t invoke religion.32×32. As they might against government intrusions under the First Amendment or Religious Freedom Restoration Act (RFRA). See, e.g., Franciscan All., Inc. v. Becerra, No. 21-11174, 2022 WL 3700044, at *1–3 (5th Cir. Aug. 26, 2022) (holding that RFRA bars the Department of Health and Human Services from interpreting the Affordable Care Act’s ban on sex discrimination to make a Catholic hospital perform abortions or gender-reassignment surgeries at odds with its religious mission). Federal and state laws insulate harmful denials of care on any moral ground, secular too.33×33. See Kent Greenawalt, Objections in Conscience to Medical Procedures: Does Religion Make a Difference?, 2006 U. Ill. L. Rev. 799, 824. Unwilling clinicians might object that preventing pregnancy isn’t compatible with a vision of medicine that’s limited to treating illness.34×34. See Farr Curlin & Christopher Tollefsen, The Way of Medicine 186 (2021). Or that restoring sexual minorities back to health would endorse a way of living that they see as wrong but not sinful.35×35. See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2575–78 (2015). These reasons for declining to intervene don’t have to be spiritual. Nor do claimants have to refer patients elsewhere or even tell them about their medical options.36×36. See Nadia N. Sawicki, The Conscience Defense to Malpractice, 108 Calif. L. Rev. 1255, 1276 (2020). Almost every state still shelters their withholding.
For all the solicitude afforded conscientious refusers, there’s next to none for conscientious providers. In 2012, Professor Elizabeth Sepper observed that conscience exemptions from workplace policies are limited to the denial of care that institutions require; there’s rarely any such accommodation for the delivery of care that employers forbid.37×37. See Elizabeth Sepper, Taking Conscience Seriously, 98 Va. L. Rev. 1501, 1512 (2012). It was Sepper who exposed the imbalance of a regime that protects clinicians who invoke conscience to deny care but not conscientious clinicians who would deliver care. See id. at 1509–13. That’s not all. She unraveled the presumption that conscientious refusal always deserves greater protection. See id. at 1536–38. And she developed a novel remedy: protect conscientious providers of abortion, birth control, and end-of-life care from being fired or demoted in the ways that conscientious refusers are protected from discrimination on the job. Id. at 1532–35. Sepper set the terms of the debate that this Article seeks to build on in a few ways. It interrogates not just employer policies but also legislative restrictions, more than a dozen at the federal and state level; it introduces an affirmative defense that would partially excuse the provision of clinically reasonable services that government forbids; and it advances objector fees, disclosure mandates, and distancing measures to offset the costs of accommodating refusers and providers alike. These inquiries have been enriched by Sepper’s searching examinations of religious liberty and health law. The decade since her trenchant study has seen vastly greater restrictions on whom clinicians can treat and how: imposed by either the state or entity where they work.38×38. There’s no reliable safe harbor even when that procedure is the only way to save a patient’s life. See infra notes 497–515 and accompanying text. One pregnant woman was hemorrhaging badly, having developed a 106-degree fever, her fetus beyond rescue. See Sepper, supra note 37, at 1502–03. The ethics committee at her sectarian hospital forbade an abortion because a heartbeat could be detected. See Lori R. Freedman et al., When There’s a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals, 98 Am. J. Pub. Health 1774, 1777 (2008). The attending doctor recalled: “Her bleeding was so bad that the sclera, the white of her eyes, were red, filled with blood. . . . I said, ‘I just can’t do this.’” Id. The physician ultimately severed the umbilical cord when no one was looking, causing the heartbeat to stop so the ethics committee would allow the abortion to save the patient’s life. Id. The episode led him to quit. Id.
Dr. Barbara Morris specialized in elder care for over forty years, most recently at Centura Health in Colorado.39×39. “It’s a Slap of Reality”: Terminally Ill Man at Center of Aid-in-Dying Battle, CBS Colo. (Sept. 6, 2019, 11:59 PM) [hereinafter “It’s a Slap of Reality”], https://denver.cbslocal.com/2019/09/06/neil-mahoney-aid-dying-centura-barbara-morris [https://perma.cc/JD49-85SA]. In 2019, the Christian hospital fired her for seeking to help a patient end his own life after incurable Stage 4 cancer had reduced the man’s body to a skeleton shrouded in painful lesions.40×40. See JoNel Aleccia, Terminally Ill, A Colorado Man Wanted Aid-In-Dying. His Catholic Hospital Said No., Kaiser Health News (Jan. 29, 2020, 5:06 PM), https://khn.org/news/when-aid-in-dying-is-legal-but-the-medicine-is-out-of-reach [https://perma.cc/Q3P6-PMAJ]. Colorado is one of ten states to allow assisted suicide under limited circumstances.41×41. Colo. Rev. Stat. §§ 25-48-101 to -123 (2016); Physician-Assisted Suicide Fast Facts, CNN (May 26, 2022, 11:40 AM), https://www.cnn.com/2014/11/26/us/physician-assisted-suicide-fast-facts [https://perma.cc/RQ5E-7U6M]. But Centura forbids aid-in-dying as incompatible with its mission to promote “the sacredness of every human life.”42×42. “It’s a Slap of Reality,” supra note 39. When Morris sought a court order to help her patient hasten his death, the hospital fired her for “encourag[ing] a morally unacceptable option.”43×43. Id. Morris loved her job but felt she had no choice: “To be forced to abandon patients has just been intolerable for me.”44×44. Colleen Slevin, Firing of Doctor Sets Off Fight over Assisted Suicide Law, Associated Press (Sept. 4, 2019), https://apnews.com/article/fb940964985343d1ba44dd19944ea7ff [https://perma.cc/46QR-2KAN]. It’s easy to think doctors like Morris should just seek out work where they’ll be allowed to follow their conscience. But in certain parts of the country, religious institutions so dominate the healthcare market that other employers are in short supply. See infra notes 311–12 and accompanying text. Besides, the rejoinder that conscientious providers should just work someplace else can be put with equal force to refusers. See Sepper, supra note 37, at 1535.
It’s not only at the beginning and end of life that clinicians claim conscience to supply prohibited care. Twenty-six states strictly limit opioids, including for excruciating pain that nothing else can ease.45×45. See Corey S. Davis et al., Laws Limiting the Prescribing or Dispensing of Opioids for Acute Pain in the United States: A National Systematic Legal Review, Drug & Alcohol Dependence, 2019, at 166, 167. Doctors are threatened with professional and legal sanctions for prescribing higher doses, even to people who have taken them safely for years.46×46. See Kelly K. Dineen & James M. DuBois, Between a Rock and a Hard Place: Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction?, 42 Am. J.L. & Med. 7, 24–25, 35 (2016). Palliative medicine specialist Charles von Gunten can’t stand to risk pushing someone in agony to black-market heroin or even suicide because of a policy that tells doctors it’s “[b]etter to let the patient suffer than be suspected of causing a rise in the number of addicts.”47×47. Charles F. von Gunten, Editorial, The Pendulum Swings for Opioid Prescribing, 19 J. Palliative Med. 348, 348 (2016); see Sarah E. Wakeman & Michael L. Barnett, Primary Care and the Opioid-Overdose Crisis: Buprenorphine Myths and Realities, 397 New Eng. J. Med. 1, 3–4 (2018).
Another example: several states have criminalized puberty blockers to affirm a minor’s gender identity.48×48. See, e.g., Press Release, Off. of the Att’y Gen., State of Ala., Attorney General Steve Marshall Announces Plaintiffs’ Dismissal of Their Lawsuits Challenging Alabama’s Vulnerable Child Compassion and Protection Act (Apr. 16, 2022), https://www.alabamaag.gov/newsviewer/ec05fc0d-1692-4072-a919-3ea45636eaa1 [https://perma.cc/6ZVJ-D5Q3]; Letter from Greg Abbott, Governor of Tex., to Jaime Masters, Comm’r, Tex. Dep’t of Fam. & Protective Servs. (Feb. 22, 2022), https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf [https://perma.cc/NFE7-CGAE]. One pediatrician said that “practic[ing] in the best interests of the patient” now risks “my medical license, my employment, or even my freedom.”49×49. Landon D. Hughes et al., “These Laws Will Be Devastating”: Provider Perspectives on Legislation Banning Gender-Affirming Care for Transgender Adolescents, 69 J. Adolescent Health 976, 979 (2021). For doctors like Daphna Stroumsa, gender-affirming care is “a matter of conscience[.] I am called to do this work.”50×50. Holly Fernandez Lynch & Ronit Y. Stahl, Opinion, Protecting Conscientious Providers of Health Care, N.Y. Times (Jan. 26, 2018), https://www.nytimes.com/2018/01/26/opinion/protecting-conscientious-providers-of-health-care.html [https://perma.cc/RSU8-B2DN]. Other conscientious providers defy limits on prescribing marijuana, psychedelics, and ivermectin; or they resist restrictions on procedures like shock therapy, ritual genital cutting, and paid-for organ transplants.51×51. See infra Part II, pp. 1052–63.
Such contested interventions bear crucial differences. Some are legal, others not. Some are safer than others. Some require costly facilities or staff; others just a prescription pad. Some fall within the medical norm, while others push its boundaries. These particulars matter.52×52. Especially what’s clinically reasonable. See infra notes 388–93 and accompanying text. But the conviction to take people in can be as noble as the reasons to turn them away. Also, conscientious providers honor their patients’ wishes that conscientious refusers override. Shielding denials of care, while punishing its delivery without exception, isn’t just unprincipled. This radical asymmetry is pernicious too: it selectively burdens providers and drives patients underground.53×53. See infra section IV.B.2.b, pp. 1090–94.
America’s medical conscience regime is broken. This Article sets out to fix it. Part I spells out the meaning, significance, and history of conscience in United States healthcare. Part II charts the modern landscape of conscientious provision across more than a dozen restricted practices that clinicians invoke moral convictions to supply.54×54. Fifteen examples appear in the text, including multiple under the headings for IUDs, Plan B, IVF, and conversion therapy. Several additional contested practices are discussed below the line. See infra notes 175, 221, 235, 457 and accompanying text. Part III appraises the three strongest moral justifications for why our legal system comes down hard on anyone who conscientiously delivers these contested forms of care at the same time that it so zealously protects the person who conscientiously denies them. One reason is that forcing doctors to perform a procedure they oppose is worse than preventing them from undertaking one their scruples compel them to. Then there’s the idea that entitling clinicians to decline care costs their employers or states less than having to equip those third parties with the resources they would need to furnish it. And finally, exempting refusers needn’t prevent the people they turn away from accessing permitted treatment elsewhere, whereas exempting providers does defeat whatever interest an institution or government has in banning it. This Part finds these rationales insufficient to save the striking imbalance that distinguishes U.S. conscience protections from the rest of the developed world. Two points stand out: the ethical obligations that doctors owe their patients and the practical harms that blanket release from those duties can foist on people who need care and the places they go to get it.
Part IV seeks to dislodge the refusal/provision divide that governs conscience clauses in American medicine. A principled commitment to pluralism would condition exemptions from employer policies on whether treatment is available elsewhere, and offset the costs of accommodation through disclosure mandates, objector fees, and institutional distancing. The upshot: level down the near-absolute protections for conscientious refusers, while leveling up protections for conscientious providers that are virtually absent. As for government restrictions and carve-outs, states must stop insulating malpractice and abandonment. Meanwhile, a limited defense should partially excuse the conscientious supply of prohibited services that are consented to and clinically reasonable. Making this measure of space for dissent from the medical profession and society at large would go a ways toward repairing the frayed relationship between the practice of medicine and the rule of law.
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* Herzog Research Professor, University of San Diego School of Law. I owe many debts of gratitude. To my family above all. And to dazzling librarians: Melissa Abernathy, Bee Born-heimer, Jane Larrington, Sasha Nuñez, Julianne Odin, and especially Liz Parker. Erin Hudak, Connor Hume, Meena Kaypour, and Hector Lozada provided rich research assistance. Conversations with Reva Siegel in the wake of Dobbs were bracing and priceless. The project profited from the generosity of colleagues like Don Dripps, Miranda Perry Fleischer, and Mila Sohoni. I’ve been fortunate for criticisms and recommendations from fellow travelers: Kate Bloch, Jeff Blustein, Bob Bohrer, Jeff Botkin, Abe Brummett, Mara Buchbinder, Naomi Cahn, June Carbone, Nathan Chapman, Ellen Clayton, David Cohen, Glenn Cohen, Carl Coleman, Nico Cornell, Chris Cowley, Bernard Dickens, Greer Donley, Jen Drobac, Sara Dubow, Brian Earp, Jason Eberle, Paul Enríquez, Kyle Ferguson, Holly Fernandez Lynch, Gill Frank, Lori Freedman, Kyle Fritz, Kathleen Frydl, Sara Gerke, Sherif Girgis, Alberto Giubilini, Imogen Goold, Leslie Griffin, Lewis Grossman, Lisa Harris, Claudia Haupt, Yaniv Heled, Allison Hoffman, Craig Konnoth, Andy Koppelman, Allan Jacobs, Jill Wieber Lens, Myrisha Lewis, Annie Lyerly, Tim Lytton, Eric Mathison, Amy McGuire, Melanie McPhail, Max Mehlman, Michelle Mello, Sean Murphy, Doug NeJaime, Michelle Oberman, Govind Persad, Natalie Ram, Sam Rickless, Jessica Roberts, Mark Rothstein, Rachel Sachs, Bill Sage, Joanna Sax, Nadia Sawicki, Rich Schragger, Micah Schwartzman, Udo Schüklenk, Liz Sepper, Shelly Simana, Ronit Stahl, Debbie Stulberg, Chris Tollefsen, Eugene Volokh, Jen Wagner, Jessica Waters, Brad Wendel, Mark Wicclair, Dan Wikler, Robin Fretwell Wilson, Leslie Wolf, and Mary Ziegler. Their insights improved these ideas at every turn.