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 Dr. Alan Braid recounted that as a junior resident before Roe v. Wade2:
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
The Texas Heartbeat Act,4 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 Multiple $10,000 lawsuits6 forced Braid to refer hundreds of patients across the border to Oklahoma.7 But on May 3, 2022, a day after the Supreme Court’s draft opinion leaked in Dobbs v. Jackson Women’s Health Organization,8 Oklahoma enacted its own similar ban,9 later piling on damages of $100,000 and adding up to ten years in prison.10 Roe fell on June 24, 2022.11
Within weeks, more than a dozen states criminalized abortion with almost no exceptions.12 Not for the ten-year-old rape victim in Ohio.13 Not for the Louisiana mother whose fetus was doomed by a fatal condition that prevents a skull from forming.14 Not for the cervical cancer survivor, facing dangerous complications herself, forced to drive ten hours to New Mexico.15 Not for the Texas woman, too sick to travel when she was turned away after her water broke, who nearly died.16
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 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 New York clinician Linda Prine is using telehealth to prescribe medication by mail to patients in places that deny access.19 “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 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
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 For obstetrician-gynecologist David Eisenberg from Missouri,23 providing patients with abortion care is “a part of my moral and religious worldview.”24 “I’m a conscientious provider.”25
Conscientious providers find scarce refuge in the manifold safeguards to practice medicine according to conscience.26 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 These one-way liability shields are mostly indifferent to whether patients can get treatment elsewhere.28 So a hospital can deny emergency contraception.29 A genetic counselor is free not to tell a patient about results she might rely on to decide to end a pregnancy.30 A doctor could even decline cancer treatment to transgender patients.31
Conscientious refusers needn’t invoke religion.32 Federal and state laws insulate harmful denials of care on any moral ground, secular too.33 Unwilling clinicians might object that preventing pregnancy isn’t compatible with a vision of medicine that’s limited to treating illness.34 Or that restoring sexual minorities back to health would endorse a way of living that they see as wrong but not sinful.35 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 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 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
Dr. Barbara Morris specialized in elder care for over forty years, most recently at Centura Health in Colorado.39 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 Colorado is one of ten states to allow assisted suicide under limited circumstances.41 But Centura forbids aid-in-dying as incompatible with its mission to promote “the sacredness of every human life.”42 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 Morris loved her job but felt she had no choice: “To be forced to abandon patients has just been intolerable for me.”44
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 Doctors are threatened with professional and legal sanctions for prescribing higher doses, even to people who have taken them safely for years.46 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
Another example: several states have criminalized puberty blockers to affirm a minor’s gender identity.48 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 For doctors like Daphna Stroumsa, gender-affirming care is “a matter of conscience[.] I am called to do this work.”50 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
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 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
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 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.