Unpacking the Relationship between Conscience and Access

Abstract

Many people reflexively accept or reject healthcare 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 impact on access. Both accounts are too simplistic. This chapter provides a more nuanced account of healthcare conscience protections that balances the concerns of access and conscience. It does so by dividing conscious clauses into categories that are access-expanding, access-neutral, or access-contracting, distilling characteristics that make a conscience clause a threat to access, a wash for access, or, counter-intuitively, access-enhancing. This chapter also recognizes the challenge of access-freezing “super conscience clauses.” This chapter demonstrates 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 that some protections jeopardize access more than others. 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 sometimes achievable and a desirable goal.