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January 01, 2013

The Spread of Conscience Clause Legislation

by Claire Marshall

Over the past four decades, state and federal law have undergone a proliferation in conscience clause legislation, pitting individual religious autonomy against the public interest, most notably in the areas of education and health care. Modern conscience clauses have expanded greatly from their origin in the principle of conscientious objection to participation in war. Since the Civil War and throughout the wars of the twentieth century, the government has routinely allowed exemption of conscientious objectors on religious grounds. Federal law continues to grant military exemptions based on religious belief to this day. 50 U.S.C. app. § 456(j).

Conscience clauses moved beyond the military in the 1970s, following the Supreme Court’s ruling in Roe v. Wade, 410 U.S. 113 (1973). Shortly after Roe, a number of states and the federal government enacted medical conscience clauses, providing abortion-related exemptions for health care workers. Congress enacted the Church Amendment, 42 U.S.C. § 300a-7, which provides that health care entities receiving certain federal funds may “refuse to provide abortion or sterilization if such services are contrary to their religious or moral beliefs.” In addition, forty-seven states and the District of Columbia passed laws allowing medical professionals to refuse to provide abortion services. Since then, conscience clause legislation has continued to proliferate.

Closely related to abortion conscience clauses are pharmacist “right of refusal” laws, which allow pharmacists to refuse to fill prescriptions for so-called abortifacient drugs, including birth control, if filling the prescriptions would conflict with their religious beliefs. Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Maine, Mississippi, South Dakota, Tennessee, and Washington have all enacted conscience clause laws, while other states have adopted a patchwork of different approaches. Some states have actually imposed an affirmative duty on pharmacists to dispense emergency contraception, but federal courts in Washington, Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012), and Illinois, Menges v. Blagojevich, 451 F. Supp. 2d 992 (C.D. Ill. 2006), have found that such mandates violate both the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Conscience clauses also have emerged in education. In 2012, the Missouri legislature passed a “right to pray” amendment, which provides that “no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs.” Mo. Const. art. I, § 5. The law allows students who believe in creationism, for instance, to opt out of assignments on evolution. The Missouri law is not alone; indeed, the vast majority of states have adopted legislation allowing parents to opt their children out of educational curriculum that they contend conflicts with their religious beliefs. New Hampshire recently enacted the broadest of such laws, giving parents the right to object to any material in their children’s curriculum, so long as they find a reasonable, district-approved alternative and pay for associated costs. N.H. Rev. Stat. Ann. § 186:11. Unlike other states, which condition objections on religious or moral conflict, the New Hampshire law allows any objection for any reason.

Though medical and educational conscience clauses are widely publicized, they do not comprise the entire universe of conscience clause legislation. In April 2012, Virginia enacted a conscience clause law for private adoption agencies. Under this statute, private adoption and foster care agencies may refuse to be involved in any child placement that “would violate the agency’s written religious or moral convictions or policies.” Va. Code Ann. § 63.2-1709.3(A) (2012). In addition, such refusals cannot be the basis for state licensing refusals, denials of grants or contracts, or support of a damage claim. Virginia is the second state after North Dakota, N.D. Cent. Code § 50-12-07.1, to adopt such a law, which has been criticized as an attempt to allow adoption agencies to refuse services to same-sex couples.

Modern conscience clauses raise certain legal issues. First, pharmacist conscience laws conflict with the constitutional right to privacy first recognized in Griswold v. Connecticut, 381 U.S. 479 (1965), because an individual is denied her right to decide whether to use contraception when a pharmacist refuses to fill her prescription. The laws also raise constitutional Equal Protection issues, as legislation allowing pharmacists to refuse to fill contraceptive prescriptions sanctions unequal treatment of men and women. More practically, issues of access are raised, especially for women in low-income or rural areas, for whom a refusal to dispense may cut off access to contraceptives entirely. Adoption conscience clauses raise Equal Protection and Due Process concerns because they lead to the unequal treatment of individuals based on sexual orientation and the denial of fundamental familial or privacy rights.

Education opt-out laws generally have been found not to violate the Establishment Clause, Sherbert v. Verner, 374 U.S. 398 (1963), but conscience clauses highlight the tension between individual free exercise rights and the public interest. On one hand, these laws interfere with the purpose of public education, described as “the preparation of individuals for participation as citizens.” Ambach v. Norwick, 441 U.S. 68, 76–77 (1979). The nation has an interest in a well-informed citizenry, and allowing parents to shield children from particular information is not in the public interest. On the other hand, the laws protect parents’ authority to guide the education of their child, a fundamental right first recognized in Meyer v. Nebraska, 262 U.S. 390 (1923). For now, the Supreme Court has not resolved the issue, and states are free to provide broad opt-out clauses as they see fit.

Whether conscience clauses will continue their expansion into other areas of civil society remains to be seen. The recent advent of the adoption agency conscience clause, however, suggests that these laws may reach into new areas, particularly for private entities performing quasi-public functions. The next decade likely will see constitutional challenges to these laws and courts will be forced to decide whether they place a substantial burden on those individuals who are unable to obtain, for instance, emergency contraceptives or adoption services. Until then, the balance between free exercise of religion and the societal interest in ensuring individual access to medication and other public services remains unresolved.


Claire Marshall is a third-year student at Northeastern University School of Law. This article grew out of research conducted during her time as a summer associate at Prince Lobel Tye LLP in Boston, Massachusetts.