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January 31, 2011

Does a health care provider have a constitutional right not to participate in abortions?

Mark Rienzi has posted a fascinating new paper, The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Health Care Providers.  Here's (a portion of) the abstract:

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.

Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.

I have only had a chance to skim the article, and though it is well worth reading, I admit feeling some skepticism toward the constitutionalizing of professional conscience claims.  Whether or not providers were allowed to refuse to participate in abortion over the course of our nation's history, I still think the constitutional question has to take a back seat to questions about the definition of the professional role.  If a state hospital posted a job description for an "abortion provider," I have a hard time imagining the doctor hired for that job successfully challenging the state's decision to fire him for refusing to provide abortions.  Let's say that the state wants, via its professional licensing authority, to establish a category of abortion providers as a subset of the broader category of obstetricians.  Would it be constitutionally permissible for the state to require a willingness to provide abortions as a condition of licensing for that category?  It's difficult for me to see where the constitutional violation kicks in -- perhaps when the state sweeps too broadly with the requirement, forcing all obstetricians to provide abortions as a condition of licensing, for example?  In any event, I need to spend more time with this article, and you should too.

Posted by Rob Vischer on January 31, 2011 at 11:06 PM in Vischer, Rob | Permalink

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The laws that Mark's article primarily deals with are direct and broad compulsory participations in abortion by the state. New Jersey, for example, compells all pharmacists to dispense all legal drugs. That doesn't just apply to pre-implantation abortifacients, as bad as those are. Misoprostol is a drug stocked in most pharmacies for ulcers and can be used by itself even in the second trimester for abortions. So there's a large swath of state compulsions that fall fairly straightforwardly to a constitutional right not to assist abortions without coming near the conundrum you propose.

Posted by: Matt Bowman | Feb 1, 2011 10:04:33 AM

Thanks Matt. Maybe a helpful way to think about it is whether the state action looks more like imposing an obligation on a certain subset of citizens versus creating and defining a professional role to ensure provision of a contested good or service. It won't always be clear, of course, which category a state action falls under.

Posted by: rob vischer | Feb 1, 2011 10:51:21 AM

I think there isn't much middle ground for defining the professional role. Either abortion is a tolerated aberration or it is the medical standard objection to which is a tolerated aberration. All employers will define abortion as a bona fide occupational qualification if that is an exception to conscience rights. The constitutional right Mark is asserting would by definition only apply to state actors, so its only them that are somewhat hampered in getting into the direct abortion business themselves by the lack of such an exception.

Posted by: Matt Bowman | Feb 1, 2011 11:15:05 AM

I say "somewhat hampered" because I don't think pro-lifers applying to the abortionist-only position is really a practical problem. Since the premise of this hypothetical already puts us in the realm of weighing the effects on different interests in the controversy, it seems fair to observe that this hyppothetical is negligable in its impact on actual experience, for reasons from both the employer and the employee sides. In contrast, employment of medical professionals in 95% real health care with an attempt to make them do abortion on the side is not only rampant, it is what abortion advocates openly proclaim to be their goal for the medical industry. They don't even want segregated abortionists anymore. They want all Ob/Gyns, nurses, and pharmacists involved, and they are taking real, large-scale steps to do it. That's the practical problem to be addressed first.

Posted by: Matt Bowman | Feb 1, 2011 11:29:32 AM

First, thanks very much for taking a look at and discussing the article--I greatly appreciate it and welcome the comments.

As to Rob's initial point, I actually don't think the constitutional right would be much at issue if the state were hiring someone for the position of "abortion provider." All (or at least most) constitutional rights can be waived, and it seems to me that if one signs up for the job of "abortion provider", that pretty clearly indicates a willingness to provide abortions. The work I think the constitutional right really does is in the vast majority of other cases where someone did not sign up to provide abortions, but rather simply to be a doctor, nurse, pharmacist, etc. and then is told by the state that, as a condition of keeping that license, participation in abortions is required. While most constitutional rights can occasionally be trumped by a law that is narrowly tailored to serve a particularly compelling interest, it will usually be nearly impossible for the government to make out an argument that an interest is simultaneously (a) compelling enough to force unwilling individuals to participate in abortions, but (b) not quite compelling enough for the government to simply provide the service directly, or to provide incentives for willing providers like Planned Parenthood to locate in underserved communities rather than more profitable urban centers. Thus I think the constitutional right would be an effective block against a government that seeks, for example, to say that all nurses must participate in abortions as a condition of employment--the government would never be able to show that there is a compelling need to force objecting nurses out of the profession, nor would they be able to show that such a requirement is narrowly tailored to serve a valid interest.

Further, while Roe of course creates a right to be free from affirmative governmental interference with someone's effort to obtain an abortion--and for the purposes of this paper, I'm assuming that's a perfectly valid interest--that right has never included the right to have the government compel unwilling individuals or organizations to participate. In fact, the Court's decision in Maher v. Roe makes clear that the Roe v. Wade right does not even include the right to force the government to pay money for abortions. If you can't make the government even give money for abortions, it is hard to see how the right includes making unwilling private individuals perform them. Thus I do not see an individual or organizational choice not to provide abortions as creating a conflict of rights at all--the right recognized in Roe simply doesn't have anything to do with what private individuals and organizations do or don't do. I have a First Amendment right to purchase a Bible or a pornographic magazine (or both--the constitution doesn't require consistency!), but that doesn't mean that any particular bookstore can be forced to sell them to me. It just means the government cannot preclude me from getting them.

Posted by: Mark Rienzi | Feb 1, 2011 12:20:22 PM

Thanks Mark. One challenge facing your argument, as I see it, is the tendency for folks to reject your characterization of state-licensed providers as "private individuals." I *think* you touch on this in the paper, and that seems to me to be where a lot of the resistance will focus. Like you (I think), I view professional licenses as safeguards of competence, not as means by which providers are enlisted as quasi-government officials. I think our view, though, is seriously contested at this point.

Posted by: rob vischer | Feb 1, 2011 5:52:38 PM

A question for Rob and Mark: What about laws that enlist doctors to provide scripted information about fetal development for women that seek to obtain abortions? Suppose a doctor believes that the information is misleading or that delivering it is in some other way incompatible with his or her integrity as a person and as a professional. Would that doctor have a constitutionally protected conscience right to refuse enlistment as a mouthpiece of the state, but to nevertheless continue to perform abortions? If professional licenses are "safeguards of competence" rather than a "means by which providers are enlisted as quasi-government officials" (which sounds right to me), then it would seem difficult to justify the compelled speech simply as an incident of professional licensing. Is there some other way to justify this particular form of compelled speech? Or does it not call for justification in the same way that compelled participation in performing an abortion does?

Posted by: Kevin C. Walsh | Feb 1, 2011 10:20:22 PM

Viewing licensees as quasi-government officials is just as inconsistent with Roe's view of conscience rights as Mark argues compelled assistance in abortion is. Additionally, viewing licensed professionals as not private doesn't clearly or neutrally lead to any obligation that they assist abortions in violation of their conscience rights. Any suggestion that patients must have the ability to choose abortion from licensees equally suggests that patients must have the ability to choose doctors who adhere to the Hippocratic oath and can be trusted not to ever kill (many more patients want such a right). Unless, that is, one loads the dice so that patients have a right to choose abortion but not to choose pro-life care. Which is utterly biased and unprincipled.

Posted by: Matt Bowman | Feb 2, 2011 12:03:43 AM

Great question, Kevin. My initial reaction is that, while protection against compelled speech needs to be part of any conversation about the liberty of conscience, a constitutional right not to be required to perform an abortion would be much stronger than any constitutional right not to be required to provide certain information in the course of performing an abortion. I haven't thought about this much, though, and I'd be interested in others' reactions.

Posted by: rob vischer | Feb 2, 2011 1:23:49 AM

As to Kevin's question, I think there are both First Amendment and Fourteenth Amendment differences. As to the Fourteenth (which is the subject of the paper), one key difference is that state governments have always had the authority to regulate what shall constitute informed consent before performance of an actual medical procedure. Absent informed consent, the surgery is a battery, and state courts (and later legislatures) have for centuries dictated what needs to be conveyed for consent to really be informed. So from a historical perspective, there is no "deeply rooted" right to perform surgery without state-imposed requirements for informed consent. That makes it fundamentally different from this history regarding refusal to perform abortions, which has been strongly protected throughout history.

Kevin's point also raises the interesting First Amendment question of why the types of disclosure requirements he mentions are constitutional, while the recent Baltimore case shows that sign requirements for pro-life pregnancy centers are unconstitutional. The difference, as I see it, comes down to whether one wants to perform a medical procedure as part of a licensed profession (in which case, for the reason above, government has always had the ability to impose requirements about what must be said) and whether one wants to simply TALK ABOUT a medical procedure (in which case, as the court's decision in Baltimore made clear, the state can't impose such requirements). To put it another way, while the disclosure requirements before actual performance of an abortion have been found constitutional, it would be absurd to suggest that Planned Parenthood needs to give those disclosures ANY TIME THEY EVEN TALK ABOUT ABORTION. That would be the essence of a content-based speech restriction, which is why the court ruled as it did in Baltimore.

Posted by: Mark Rienzi | Feb 2, 2011 11:53:12 AM

In what areas, other than the zeal of the "choice" movement to force doctors, nurses, etc., to perform abortions, do we tell licensed professionals that they must take on certain clients and perform certain functions? We might bar discrimination based on race, etc., but other than that, virtually every professional is free to accept/reject clients: lawyers, architects, whatever.

Can we force a specific lawyer to defend a specific client? I don't think so.

The scope of government control over a licensee's behavior can only be rationally justified in relation to the purpose of the licensing to begin with. We license doctors so unqualified hacks don't kill people. Could we force doctors to all do their fair share of facelifts? Why not?

How about requiring us all to pay to an abortion subsidy fund, as a condition of getting a driver's license? Hey, if it's ok to enforce any unconnected goal of the government by withholding a license, why not?

Compare an unregulated field. Could we force Wal-Mart or any retail store to carry certain products? Condoms? Green sweaters? Beanie Babies? Why or why not?

Only in abortion-land do otherwise-settled issues get turned upside down. The right to "choice" compels us all to pay for your choice, and compels some of us to actually perform morally objectionable actions.

That we even seriously have this argument is a sad sign.

Posted by: joe reader | Feb 4, 2011 5:23:08 PM

Truth begets truth, error begets error.

Posted by: Nancy D. | Feb 7, 2011 10:48:19 AM

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