There are emerging conflicts in what I call the second round of health care conscientious objection. The first round, following Roe v. Wade, continues to engage religious health care providers in conscientious objection to abortion, contraception, sterilization, and IVF and is directed toward the protection of the basic human goods of life and procreation.
Round two—defending conscience-based medicine in the midst of competing sexual liberty claims—follows on the heels of federal legalization of sodomy in 2003 (Lawrence v. Texas) and of same-sex marriage in 2015 (Obergefell v. Hodges) and results, most ominously, from the introduction of state civil-rights statutes prohibiting discrimination in public accommodations based on sexual orientation or gender identity, or SOGI laws.
This new legal landscape has already and will continue to impel religious health care professionals to defend the basic goods of marriage and family in their conscientious judgments to decline services directly facilitating a patient’s same-sex relations or homosexual parenting.
Here we outline the problem—how competing liberty claims threaten the extinction of health care rights of conscience (HROC)—and then suggest an effective solution, a plan to help regenerate the “first freedom” of religious health care providers so that sexual liberty and religious liberty interests can coexist.
In this article, I use the adjective religious before health care providers to designate those health professionals who want to claim their First Amendment rights not merely as the right to worship, but also as the right to exercise religion in their personal and professional lives.
The Problem: The Constitution cannot fully protect HROC
Our nation has a long history of crafting legislative solutions for conflicts between laws of general application (like public accommodation laws based on sexual orientation or gender identity) and the conscientious religious beliefs of minorities who are affected by them (like religious health care providers). While utilitarian considerations played a role, our Constitution’s First Amendment tradition of religious liberty most fully explains our history of legislative protections for conscience.
It is true that the First Amendment expressly constrains government from enacting laws that infringe upon the free exercise of religion. However, as the Supreme Court’s 1990 decision in the landmark case of Smith proves, state laws of general applicability—like public accommodation laws—despite the fact that they impinge upon religious liberty, may nevertheless be valid and may very well prevail.
So what was the Smith case all about? In Employment Division v. Smith, the Supreme Court considered a conflict of rights between state law and the religious freedom of Native Americans. The claimants ingested peyote, a hallucinogenic drug, during a religious ceremony of their Native American Church. Their employer dismissed them for violating the state law prohibiting illicit drug use. After being denied the unemployment compensation for which they applied, the Native American claimants sued the state. In their decision against the plaintiffs, the Court concluded, “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes” [italics mine].
The decision in Smith, then, would not necessarily support the First Amendment liberty of religious health care professionals against claims based on state sexual-orientation and gender-identity (SOGI) laws. Without an exemption for moral or religious conscience, the legislative and judicial preference for sexual-liberty interests of homosexual patients could very well trump the religious health care provider’s First Amendment rights to free exercise of religion and free speech.
Furthermore, the Supreme Court’s decision in the 2013 Windsor case, a case built on the jurisprudence of Smith, explains why lawyer Chai Feldblum—a Georgetown University law professor and gay-rights activist who has helped draft federal legislation related to sexual orientation—insists she can’t even envision a case in which religious liberty rights should supersede sexual liberty concerns. In the Windsor decision, the majority of the Supreme Court endorsed the radical idea that public discussion challenging the morality of same-sex marriage or same-sex acts, for example, constitutes “malice” and a “desire to harm or to injure” members of the gay community.
As Howard Kurtz, a Fox News analyst, sagely notes, to those Americans (like the religious health care providers under discussion here) who barely see themselves reflected in the media coverage following the Supreme Court’s legalization of same-sex marriage the message is clear: “You are clueless, out of touch, a lost cause.” And in some quarters, Kurtz argues, the message is worse: “You are a bigot, a homophobe….” Kurtz also noted that editors of a newspaper in Pennsylvania warned they would “no longer accept, nor…print op-eds and letters to the editor in opposition to same-sex marriage.” Given the newfound right to define liberty, created by the Supreme Court in Obergefell, it’s hard to fault the logic of the newspaper’s latest editorial policy.
Congress cannot fully protect rights of conscience
In 1993, Congress reacted to the implications of Smith by enacting, in bipartisan fashion, the Religious Freedom Restoration Act (RFRA). The act states in part that:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. [Italics mine]
This restriction on government authority (it must take the least restrictive means to furthering its compelling interest of non-discrimination) applies “even if the burden results from a rule of general applicability” (think SOGI laws).
However, in City of Boerne v. Flores, the Supreme Court struck down the federal RFRA as an unconstitutional use of Congress’ enforcement powers as it applies to the states. Hence, according to the Supreme Court, although RFRA remains applicable to the federal government, it does not apply to the states.
As a direct result, and to expand protections for their free exercise of religion, some 20 states have enacted their own version of the Religious Freedom Restoration Act, or RFRA. But what about the religious liberty of health care providers in the 30 states that have no RFRA laws? Best guess is that judges in those 30 states would be more apt to apply the jurisprudence of Smith, allowing SOGI laws to preempt the First Amendment constitutional protections of religious providers.
Congress might enact additional legislation to address conscience protections for religious health care providers. First, they could pass the Health Care Conscience Rights Act, introduced by Congressmen Diane Black, Jeff Fortenberry, and John Fleming, which offers full exemption for religious health care providers from Obamacare’s contraception mandate and ensures protections for individuals and health care entities that refuse to provide, pay for, or refer patients to abortion providers because of their deeply-held beliefs.
Second, Congress could enact the First Amendment Defense Act, introduced by Republican Congressman Raul R. Labrador to protect the religious freedom guaranteed by the First Amendment.
But even if Congress enacts these laws, they would provide limited protections grounded only in federal law. Moreover, these safeguards do not necessarily preempt state public-accommodation discrimination claims raised in the high-profile conflict cases we consider below.
“Right to privacy” threatens rights of conscience
As the demographics of religious belief have changed, the idea of protections for conscience has expanded to defend personal beliefs and decisions that are non-religious in character. The Due Process Clause of the Fourteenth Amendment has become a significant constitutional vehicle for defining a “substantive sphere of liberty” —including both “a right to privacy”  and “a right to liberty” —that allegedly lies in the penumbras of the Constitution and that applies to an ever-expanding list of personal, sexual-behavior decisions, including contraception, same-sex acts, and now same-sex marriage. As the Supreme Court has observed:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. 
Consistent with what some prefer to call the “bastardization of the Fourteenth Amendment” and its spawn of relativistic libertine ideology, the Supreme Court expanded sexual liberty or “privacy” by striking down state laws that restricted access to contraception  and abortion.  The Court also removed legal proscriptions against private homosexual conduct between consenting adults,  thereby expanding the range of choices for citizens in matters of sexual expression. And, most recently, the Court has removed legal proscription against same-sex marriage, declaring it a constitutional right in every state in the Union. 
It should be noted that the Supreme Court is not alone in expanding sexual liberty. State legislatures have also been instrumental in removing barriers to sexual freedom. For example, before the Supreme Court effectively struck down the remaining state sodomy statutes in Lawrence v. Texas, a substantial majority of states had already removed criminal sanctions for such conduct. Prior to the Supreme Court’s decision in Obergefell v. Hodges, state courts and legislatures had enacted statutes that legalized various forms of relationships between same-sex couples, including same-sex marriage and same-sex civil unions. Importantly, these legislative and judicial moves extend the “approval” of the state toward the claim of privacy and its correlative sexual liaisons and suggest to the “average Joe and Jane” that the choices of contraception and same-sex acts and same-sex marriage must be moral because they are legal.
The regnant judicial interpretation of state SOGI laws threatens rights of conscience
Thirty states and Washington, DC have laws explicitly prohibiting discrimination in public accommodations based not only on race, skin color, religion, national origin, and disability but also on sexual orientation and gender identity. This means that SOGI laws prohibit state owners or directors of public businesses such as restaurants, theaters, hotels, museums, hospitals, clinics, libraries, and gas stations from discriminating against customers on grounds of their sexual orientation or gender identity. The goal of SOGI laws is to ensure persons who are transgendered or who have a same-sex orientation have unfettered access to all public services, including health care services.
Case precedents set by high-profile sexual liberty claims against conscientiously objecting public service providers are like weathervanes indicating which direction the legal winds are blowing for religious conscientious objection in America.
In North Coast Women’s Care v. San Diego County Superior Court, a small medical practice faced liability when two of their physicians declined to perform intrauterine insemination for a lesbian couple based on religious convictions.
When the couple ultimately needed a referral to a doctor outside of their insurance plan at a “substantially greater” cost, they filed suit against the medical group claiming a violation of the public accommodations, sexual orientation provision of California’s Unruh Civil Rights Act. North Coast Women’s Care argued that a state-mandated provision of intrauterine insemination would be contrary to the doctors’ First Amendment right to free exercise of religion.
In 2009, the California Supreme Court ruled that, under the SOGI provision of California’s Unruh Civil Rights Act, religious liberty did not protect the conscientiously objecting physicians from patient claims of sexual orientation discrimination:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
The California Supreme Court, then, adopting the jurisprudence of the landmark case of Smith, preferred the sexual liberty concerns of the patient-plaintiff over the physicians’ First Amendment Free Exercise interests.
The same anti-religious liberty bias reared its head in a more recent series of wedding-vendor cases. The Supreme Court of New Mexico, for example, ruled that the First Amendment did not protect photographer Elaine Huguenin’s conscientious right to decline to take pictures of a same-sex commitment ceremony. Oregon’s Bureau of Labor and Industries issued a ruling that Melissa and Aaron Klein, in their conscientious refusal to bake a cake for a same-sex couple’s wedding reception, violated Oregon’s sexual orientation law. And Washington State Attorney General Bob Ferguson filed suit against Baronelle Stutzman claiming that, in conscientiously refusing to arrange the flowers for a gay couple’s wedding ceremony, she violated the state’s public accommodations law.
From North Coast Women’s Care to these wedding-vendor cases, we see emerging a definite legal strategy—a judicial hermeneutic of public accommodations laws—in which SOGI provisions were used to trump fundamental civil liberties of public service providers. The courts could utilize SOGI statutes as a blunt instrument against religious liberty because they framed the cases, in the first place, as a zero-sum, direct conflict of rights. Then, when they asked whether First Amendment rights of religious freedom and free speech would exempt wedding vendors and religious health care providers from complying with SOGI laws, the courts answered with a resounding “Absolutely not!”
In other words, instead of finding a way for religious and sexual liberty interests to coexist—instead of finding the least restrictive way to reconcile these conflicting rights as the Religious Freedom Restoration Act argues—courts effectively held that the homosexual patients’ right to be free of discrimination on the basis of sexual orientation trumps the religious liberty of business owners and health care providers.
In contradistinction to the courts, we should note how the two North Coast physicians did find the least restrictive way to carry out the state’s compelling interest of prohibiting discrimination against homosexuals in public accommodations. They found a way for sexual and religious liberty to coexist. Both religious clinicians honored the patient’s right to health care by finding and referring her to another fertility specialist, and even reimbursed her for any additional expenses incurred in the move. In doing that, the clinicians also protected their right to practice medicine in accord with their religious convictions: they declined to provide a requested service that contravened their faith-inspired judgment of conscience.
The best counter-punch against these escalating threats to religious freedom is also, it seems to me, the best offence. First, religious health care providers need to educate their state lawmakers on the meaning of conscience. They need to pique their lawmakers’ interest by enumerating the adverse consequences that follow when the coercion of conscientious judgments of health care professionals prevails. Toward this end, religious healthcare providers need to present their state legislators with a “Conscience Primer” (such as the one available here) that clearly delineates the serious harms to the provider, the profession, and the polity when the state fails to protect the legitimate exercise of conscience rights within health care.
Second, conscientious health care professionals need to help their state lawmakers draft and enact stand-alone, comprehensive state health care conscience protection statutes. Presently, there are only two states with robust conscience protection laws for health care providers: Mississippi and Louisiana. Both provide comprehensive rights of conscience protection for health care providers, institutions, and insurance companies that conscientiously object to participating in any health care service they find morally offensive.
Either of these laws would provide religious health care providers who live in states other than Louisiana and Mississippi a great model for their state’s health care conscience statute, one they could share, in turn, with their state lawmakers. Now all that is needed is the will to get this done in whatever state religious health care providers reside.
 Planned Parenthood v. Casey (1992)
 Griswold v. Connecticut (1965) and Roe v. Wade (1973)
 Obergefell v. Hodges (2015)
 Planned Parenthood v. Casey (1992)
 Griswold v. Connecticut (1965)
 Roe v. Wade (1973)
 Lawrence v. Texas (2003)
 Obergefell v. Hodges (2015)
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