Unpacking the Relationship between Conscience and Access

Many people reflexively accept or reject health care conscience protections. Those prizing religious freedom argue that conscience protections ensure that religious believers can both take jobs in medicine and act consonant with their faith. This group sometimes gives short shrift to concerns about access to needed medical services. On the other side, advocates for reproductive rights sometimes see access concerns as so overriding that no religious convictions should ever be accommodated, even when there would not be an impact on access. Both accounts are too simplistic. A more nuanced account would divide conscience clauses into those that are access-expanding, access-neutral, or access-contracting and ask what characteristics make a conscience clause a threat to access, a wash for access, or, counter-intuitively, access-preserving. This chapter provides that more nuanced account. It shows that it is possible to balance conscience and access, in at least some cases, by using common-sense devices, such as notice, parity rules, protections conditioned on not causing harm, and thickened duties to transfer pregnant women in distress. This chapter recognizes, however, that some protections jeopardize access more than others – for example, federal efforts to insulate conscience against encroachment by state authorities with “super conscience clauses” effectively hobble efforts to be more responsive to access concerns. In a civil society, we should strive to maximize conscience protections without jeopardizing access. As the U.S. Supreme Court's remand in Zubik v. Burwell reminds us, realizing reproductive access without encroaching on conscience is achievable. ACCESS-PRESERVING PROTECTIONS Although counter-intuitive, giving individual providers and institutions the flexibility to follow their convictions when deciding what services to offer can promote access to contested services. Consider Congress’ inaugural health care conscience clause, the Church Amendment. Shortly after Roe v. Wade, Congress clarified that receiving federal hospital construction funds did not compel objecting institutions to provide abortions. Congress also protected individual physicians from losing staff privileges or suffering other “discrimination” for doing abortions or refusing to do them. This equal-opportunity conscience protection reveals that conscience protections need not imperil access.