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Table.  Protections and Limitations in State Abortion Conscience Laws
Protections and Limitations in State Abortion Conscience Laws
1.
City Attorney of San Francisco. Herrera forces Trump Administration to back down on discriminatory health care rule. https://www.sfcityattorney.org/2019/06/28/herrera-forces-trump-administration-to-back-down-on-discriminatory-health-care-rule. Accessed July 22, 2019.
2.
US Department of Health and Human Services. Protecting Statutory Conscience Rights in Health Care; Delegations of Authority. https://www.federalregister.gov/documents/2019/05/21/2019-09667/protecting-statutory-conscience-rights-in-health-care-delegations-of-authority. Published May 21, 2019. Accessed June 18, 2019.
3.
Sawicki  NN. Procedural protections in reproductive health care conscience laws. http://lawatlas.org/datasets/procedural-protections-in-reproductive-health-care-conscience-laws. Accessed June 19, 2019.
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Kaye  J, Amiri  B, Melling  L, Dalven  J; American Civil Liberties Union. Health care denied: patients and physicians speak out about Catholic hospitals and the threat to women’s health and lives. https://www.aclu.org/report/report-health-care-denied?redirect=report/health-care-denied. Published May 2016. Accessed June 18, 2019.
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Uttley  L, Khaikin  C. Growth of Catholic hospitals and health systems: 2016 update of the Miscarriage of Medicine Report. MergerWatch. http://static1.1.sqspcdn.com/static/f/816571/27061007/1465224862580/MW_Update-2016-MiscarrOfMedicine-report.pdf. Published 2016. Accessed June 18, 2019.
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American Civil Liberties Union v Trinity Health Corp, No. 15-cv-12611 (ED Mich, 2016).
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Research Letter
November 19, 2019

Protections From Civil Liability in State Abortion Conscience Laws

Author Affiliations
  • 1Loyola University Chicago School of Law, Chicago, Illinois
JAMA. 2019;322(19):1918-1920. doi:10.1001/jama.2019.15105

Federal and state conscience laws protect medical professionals and institutions who decline to provide certain medical services, such as those related to abortion, based on their beliefs. Federal laws and regulations protect medical professionals, hospital employees, and others from discrimination on the basis of their conscientious beliefs. Recently, the US Department of Health and Human Services agreed to delay implementation of a new regulation that strengthens the Office of Civil Rights’ authority to investigate complaints of conscience-related discrimination.1,2

State conscience laws typically provide additional protections that supplement those established by federal antidiscrimination law. For example, most states prohibit lawsuits by injured patients who are denied treatment for reasons of conscience. However, some states limit refusal rights when the exercise of those rights is likely to harm patients, such as when patients seek emergency treatment.

This cross-sectional study identified state laws that grant individuals and institutions rights to refuse participation in abortion, that grant immunity from liability for such refusals, and that limit conscience rights when patient safety is at risk.

Methods

Using Westlaw (the most widely used research database of state laws and regulations) and state legislative websites, the research team identified laws in all 50 states and the District of Columbia in effect as of December 17, 2018, that protect rights to refuse participation in abortion.

The laws were coded by procedural protections established, beneficiaries of civil immunity, and patient-protective limitations on rights of refusal. All laws were independently coded by 2 researchers, and divergences were resolved through consultation with the full team. Divergence rates were approximately 5%.

Results

The full data set and protocol examining conscience laws related to reproductive health services are publicly available on the LawAtlas Policy Surveillance Portal.3

As of December 2018, 46 states had 1 or more laws that protect clinicians and institutions, as well as other individuals and entities, from adverse consequences that may arise as a result of their conscientious refusal to participate in abortion (Table). While the scope of protections varied by state, these laws frequently established immunity from adverse actions by employers, government entities or officials, and educational institutions. The most common protection was a prohibition on civil lawsuits against conscientious refusers. Of the 37 states that provided immunity from civil liability, 34 states protected broad categories of individuals from liability: their statutory text protected all “persons,” all “health care providers,” or all health care facility “staff” or “employees.” Thirty-two states provided civil immunity to some health care facilities.

Rights of refusal and/or civil immunity were limited in cases of emergency (13 states), miscarriage (4 states), and ectopic pregnancy (3 states). Some states explicitly required that the objecting individual or institution notify the patient of the refusal (8 states), provide a referral (2 states), provide information regarding access to services (2 states), return a prescription (2 states), and make informed consent disclosures (1 state). Twenty-six states imposed no conditions on rights of refusal.

Discussion

Conscience laws that prohibit individuals and institutions from being sued when they refuse to participate in abortion exist in most states, and as of December 2018, half of states had no limitations on these rights of refusal. However, there is evidence that some patients have been injured because they were denied abortions, arguably in violation of the standard of care.4-6 In 37 states, such patients have no legal recourse.

State legislators seeking to strike a balance between conscience rights and patient safety have achieved this goal in a variety of ways. Some states, for example, limit rights to refuse abortion in cases of emergency, miscarriage, or ectopic pregnancy. Others do not limit refusal rights, but provide some safeguards for patients by preserving their right to seek compensation for injuries in such cases.

Limitations of this study are that some laws could have been missed in the initial collection of state laws, and that some laws may have been amended since the study concluded.

Section Editor: Jody W. Zylke, MD, Deputy Editor.
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Article Information

Accepted for Publication: August 29, 2019.

Corresponding Author: Nadia N. Sawicki, JD, MBe, Beazley Institute for Health Law and Policy, Loyola University Chicago School of Law, 25 E Pearson St, Chicago, IL 60611 (nsawicki@luc.edu).

Author Contributions: Ms Sawicki had full access to all of the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.

Concept and design; acquisition, analysis, or interpretation of data; drafting of the manuscript; critical revision of the manuscript for important intellectual content; statistical analysis; and supervision: Sawicki.

Conflict of Interest Disclosures: Ms Sawicki reported receipt of research funds from Loyola University Chicago School of Law.

Funding/Support: This study received no specific funding.

Disclaimer: The views expressed in this article are those of the author and do not reflect the positions or policies of Loyola University Chicago.

Additional Contributions: I thank Tom Keefe, JD, MA; Rachel Kemel, BA, BS; Crystal Lowery, MSW; Isabella Masini, MPH; Drew Towne Morton, BA; and Christina Perez-Tineo, BA (all at Loyola University Chicago School of Law), for their contributions to data collection and analysis; and Lindsay Cloud, JD, PhD (Temple University Beasley School of Law), for her assistance in ensuring the study’s compliance with LawAtlas standards. None of these persons received compensation for their contributions.

References
1.
City Attorney of San Francisco. Herrera forces Trump Administration to back down on discriminatory health care rule. https://www.sfcityattorney.org/2019/06/28/herrera-forces-trump-administration-to-back-down-on-discriminatory-health-care-rule. Accessed July 22, 2019.
2.
US Department of Health and Human Services. Protecting Statutory Conscience Rights in Health Care; Delegations of Authority. https://www.federalregister.gov/documents/2019/05/21/2019-09667/protecting-statutory-conscience-rights-in-health-care-delegations-of-authority. Published May 21, 2019. Accessed June 18, 2019.
3.
Sawicki  NN. Procedural protections in reproductive health care conscience laws. http://lawatlas.org/datasets/procedural-protections-in-reproductive-health-care-conscience-laws. Accessed June 19, 2019.
4.
Kaye  J, Amiri  B, Melling  L, Dalven  J; American Civil Liberties Union. Health care denied: patients and physicians speak out about Catholic hospitals and the threat to women’s health and lives. https://www.aclu.org/report/report-health-care-denied?redirect=report/health-care-denied. Published May 2016. Accessed June 18, 2019.
5.
Uttley  L, Khaikin  C. Growth of Catholic hospitals and health systems: 2016 update of the Miscarriage of Medicine Report. MergerWatch. http://static1.1.sqspcdn.com/static/f/816571/27061007/1465224862580/MW_Update-2016-MiscarrOfMedicine-report.pdf. Published 2016. Accessed June 18, 2019.
6.
American Civil Liberties Union v Trinity Health Corp, No. 15-cv-12611 (ED Mich, 2016).
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