The states and the federal government have passed laws that allow medical
care professionals, with some exceptions, to refuse to participate in abortions.
These laws are strictly the result of political compromises, not constitutional
rights. Although most medical care providers who oppose abortion do so on
religious grounds, this does not trigger the First Amendment’s protection of the
free exercise of religion. A law that regulated abortion or any other medical
treatment on religious grounds would constitute an illegal establishment of
These laws are limited in two respects. First, they apply to actions, not to
patient counseling. A medical care practitioner cannot appeal to a conscience
law to defend a medical malpractice lawsuit based on failure to counsel a
patient about the medical indications for abortion. Second, they have limited
applicability in emergency situations. If a woman presents to the emergency
room in extremis because of an incomplete abortion, the emergency room
medical care practitioner cannot hide behind a conscience law and allow the
woman to die. Fortunately, almost all medical care providers treat saving a
mother’s life as of a higher ethical urgency than their personal religious beliefs.