Professional medical standards typically allow providers to refuse to provide a health care service that violates their moral or religious beliefs in cases in which this right of refusal does not interfere with a patient’s right to care. Some policies specify that a provider’s right of refusal cannot take precedence if declining to provide services risks patients’ safety, limits their autonomy or subjects them to unjust treatment. Furthermore, medical guidelines state that any legal or ethical right to refuse care must incorporate protections to ensure that this refusal does not undermine access to sexual and reproductive health care. For instance, the American College of Obstetricians and Gynecologists recommends that “any conscientious refusal [that] conflicts with a patient’s well-being should be accommodated only if the primary duty to the patient can be fulfilled.”1
This idea of a right to refuse to provide care has been written into numerous federal and state laws in the form of policies known as refusal or conscience clauses. These policies typically allow certain health care professionals (such as physicians or nurses) or institutions (such as hospitals or clinics) to refuse to provide or participate in abortion, contraceptive or sterilization services. While some of the institutional policies are limited to private or religiously affiliated health care facilities, others apply to all institutions providing health care. A few states have enacted laws that specifically allow pharmacists or pharmacies to refuse to dispense medications on the basis of religious or moral beliefs. In addition, some states allow employers or insurers with religious or moral objections to refuse to provide insurance coverage of contraceptives.
STATE LAWS AND POLICIES
For a chart of current laws and policies in each state related to refusing to provide or cover reproductive health services, see Refusing to Provide Health Services.
For information on state laws and policies related to other sexual and reproductive health and rights issues, see State Laws and Policies, issue-by-issue fact sheets updated monthly by the Guttmacher Institute’s policy analysts to reflect the most recent legislative, administrative and judicial actions.
RELEVANT DATA AND ANALYSIS
Strategies to Mitigate Harm
Policymakers have explored a wide range of tactics to mitigate the potential harm of religious and moral refusals and balance religious rights with other rights, needs and responsibilities.
- Most policies limit refusals to specific health care services (e.g., abortion, sterilization, contraception or in vitro fertilization), although some policies allow refusals for any health care service.
- A Louisiana law enacted in 2009 allows health care providers to refuse to participate in services “limited to abortion, dispensation of abortifacient drugs, human embryonic stem cell research, human embryo cloning, euthanasia, [and] physician-assisted suicide.”2
- By contrast, a Mississippi law enacted in 2004 does not limit which health care services may be subject to refusal.3
- Emergency care is a special subset of medical services often treated differently from other health services. Many policies specifically prohibit refusals in emergency situations or for particularly time-sensitive services to make it clear that patients’ health must not be undermined.
- In 2010, Idaho enacted a law allowing health care providers to refuse to provide services related to abortion. However, the law specifically requires them to provide treatment in a “life-threatening situation” if no other provider is available, even if they have registered an objection.4
- In line with principles of medical ethics, some state policies allow refusals for performing procedures and dispensing pharmaceuticals, while prohibiting them for providing counseling, information or referrals. This distinction aims to ensure that patients are still able to understand their options and provide informed consent to care rather than being effectively abandoned by the health care system without recourse for the care they are seeking.
- Mississippi’s 2004 law is one example of a statute that violates this standard and explicitly allows refusals related to providing counseling, information and referrals.3
- Some policies limit refusal rights to specific types of health care professionals or to people directly involved in providing the services; others are broad enough that they may extend those rights to people only indirectly involved (e.g., clerical or janitorial staff).
- North Carolina law states that only a “physician, nurse, or any other health care provider” may refuse to provide or participate in abortion care. “Health care provider” is defined as including licensed or certified professionals.5,6
- On the other hand, Utah defines “health care provider” extremely broadly, as “an individual who is an employee of, has practice privileges at, or is otherwise associated with a health care facility.”7
- Some state refusal policies clearly define limited types and characteristics of entities that are granted refusal rights. However, some policies grant these rights to any health care facility, insurance company or employer sponsoring health coverage regardless of type or affiliation.
- Oregon’s contraceptive coverage guarantee includes a religious exemption limited to nonprofits and institutions run by or affiliated with a house of worship.8
- By contrast, Utah amended its refusal law in 2011 to allow any health care entity (regardless of whether it is a nonprofit or religiously affiliated) to refuse to provide abortion services on “religious or moral” grounds.7
- Some policies specifically prohibit refusals that would discriminate against people based on broad characteristics (such as race, national origin, sex, sexual orientation, age or marital status) or their personal beliefs. However, most refusal laws are silent on this issue.
- A 2004 Mississippi law allows refusals for almost any activity in almost any circumstance; however, a provider may not refuse to provide health services “because of the patient’s race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.”9
- By contrast, an Illinois law that also allows refusals in almost any circumstance explicitly supersedes all other laws, including those that protect against discrimination.3
- Some policies obligate other parties to ensure that refusals do not unduly interfere with coverage or care.
- Some state laws, regulations and state pharmacy board policies allow pharmacists to refuse to provide services only in instances in which another pharmacist can fill the prescription on-site or the refusing pharmacist can offer a valid referral to another pharmacy.10,11
- In Washington, health care providers are allowed to refuse to provide services, but health plans are required to ensure that “enrollees refused services…have prompt access to information…describing how an enrollee may directly access services.”12
- Some policies specify that when individuals or institutions object to certain services or coverage, they must provide prior notice to patients and other interested parties, such as a health care professional’s employer (in the instance of an individual’s objection) or a health plan’s enrollees or potential enrollees.
- A 2009 Louisiana law requires providers to give written notice of their objections to current and potential patients and employers, to help ensure that refusal will not compromise patient access to health care.3
- An Oregon law allows hospital employees to refuse to participate in the provision of abortion on the condition that the employee notifies the hospital of their objection.13
Consequences of Blocking Access to Contraceptive Services
Refusals to provide reproductive health services or coverage can make it more difficult for women to access and afford care and can lead to serious health, economic and social consequences for women and families.14,15
- Access to contraceptive information, services and supplies helps women and couples prevent unintended pregnancies, the documented health benefits of which include reduced risk of pregnancy-related illness, injury and death.16 Spacing births is, in turn, associated with reduced risk of premature deliveries and low birth weight, and having a planned pregnancy is linked to improved prenatal care and breast-feeding.
- Moreover, according to numerous studies and to women’s reports, contraceptive use enables women to complete their education, obtain or keep a job, support themselves financially, and tend to the needs of their families.17
- Insurance coverage of contraception is also important because cost is an impediment for many women in choosing and using the method they believe is best for them at a given point in their life.18 For example, highly effective methods—such as IUDs, implants and sterilization—may require women to spend hundreds of dollars out of pocket if the method is not covered by insurance.19
Consequences of Blocking Access to Abortion Services
- In 2011, some 45% of pregnancies in the United States were unintended, and a substantial portion of these pregnancies ended in abortion.20 For women facing an unintended pregnancy (or changed circumstances during a planned pregnancy), access to timely, affordable and respectful abortion care is a critical component of reproductive health care.
- Practical barriers—such as lack of abortion coverage, out-of-pocket costs or the need to make travel, work or childcare arrangements to get to a provider—can impede women from obtaining abortion care. One study published in 2013 surveyed more than 630 abortion patients and found that many were forced to divert money from living expenses—such as rent (14%), food (16%), or utilities and other bills (30%)—to pay for the procedure.21
- While the risk of death associated with abortion is rare at any point in pregnancy, it increases with gestation, from 0.3 deaths for every 100,000 abortions at eight weeks or earlier to 6.7 deaths per 100,000 at or after 18 weeks.22
Federal Laws and Policies on Refusals
There is a long history of federal laws and policies that address the intersection between refusal clauses and sexual and reproductive health and rights, and these have an impact on access to services for patients as well as influence on state-level refusal policies.3
- The federal government is prevented from placing conditions on funds allocated by the U.S. Department of Health and Human Services that would require health care personnel or institutions to perform or assist in abortion or sterilization procedures against their moral or religious convictions. This provision, known as the Church Amendment and enacted by Congress in 1973, also prevents institutions that receive certain federal funds from penalizing personnel because of their participation or nonparticipation in or beliefs about abortion or sterilization.
- Refusal rights also extend to medical training for abortion. Under a 1996 federal law, medical institutions and personnel are allowed to refuse to provide abortion training or to refer students elsewhere, and medical students may refuse to be trained in the procedure.
- Under a provision known as the Weldon Amendment, enacted in 2004, federal, state and local governments may not require health care personnel or institutions to perform, provide, refer for or pay for an abortion. Similar language was included in the Affordable Care Act (ACA) in 2010 with regard to health plans offered on insurance marketplaces created by the statute.
- Federal regulations also govern which entities provide contraceptive coverage to their employees. In 2012 regulations implementing the ACA’s contraceptive coverage guarantee, the Obama administration provided an exemption for houses of worship that object to sponsoring a health plan that includes contraceptive coverage. The administration also established an “accommodation” for nonprofit and closely held (non-publicly traded) for-profit employers with religious objections. It allows these employers to decline arranging, paying for or even discussing contraceptive coverage, while still ensuring that their employees and dependents receive coverage for contraceptive services.
- In 2017, the Trump administration issued regulations that broadened the range of employers allowed to exclude contraceptive coverage for religious reasons to include any nonprofit or for-profit entity. The regulations also allow nonprofit and closely held for-profit employers to exclude contraceptive coverage for moral reasons. Under the 2017 regulations, employers with religious objections are allowed, but not required, to use the Obama-era accommodation to ensure that employees and their dependents can still receive contraceptive coverage directly from their insurance company. Without a requirement to use the accommodation, employers can effectively deny contraceptive coverage to their employees and those employees’ dependents. The 2017 regulations were temporarily enjoined by two federal courts in December 2017.23
- The Trump administration proposed regulations in 2018 that would broaden the universe of individuals and institutions that may refuse to provide health care services and the range of services that they may refuse to provide. Under the regulations, individuals and entities could decline to provide “counseling, referral, training, and other arrangements,” defined so broadly that it encompasses providing any information to someone seeking medical care. The regulations would apply to the entire “workforce,” which includes not only employees providing health care, but also volunteers, trainees, contractors and any personnel of a health care facility. Institutions that could refuse services include insurance plans, plan sponsors (such as employers or schools), and state and local governments.
- Under a 1997 federal law, managed care plans that participate in Medicaid cannot block health care providers from discussing treatment options with patients that the plan itself did not cover. The law includes an exception for entities that object on religious or moral grounds to refuse to cover counseling and referral for certain services in their insurance plans. However, federal law requires that current and prospective Medicaid enrollees receive specific information on any services that are covered by Medicaid but are not available through a given managed care plan, including information on where and how enrollees can obtain care, any required cost sharing and transportation options.
- Federal law protecting employees against religious discrimination (Title VII of the Civil Rights Act of 1964) requires employers to accommodate an employee’s religious practices as long as it does not cause an undue hardship to the employer. In the case of health care, “undue hardship” has been interpreted by courts and the federal government to include any outcomes that undermine patients’ health and access to care. Employees must provide notice to their employer to request such an accommodation.
Public Support for Patient Protections
The public does not support broad refusal clauses that impede patients’ access to health care.
- In a 2017 nationally representative survey, high proportions (68–73%) of registered voters expressed strong opposition to religious exemptions that allow insurers, hospitals or other providers to refuse to either offer coverage for or provide information or referrals for abortion, birth control or medical care following a miscarriage.24 Respondents were also concerned about refusal laws that interfere with patients’ ability to receive care and that affect women’s life and health—including access to abortion and contraception. Sixty-four percent of respondents said that a patient’s health should come first, and 62% said that religious exemption laws put women’s lives in danger; 80% of those surveyed supported policies ensuring that patients receive complete information and referrals for abortion services.
- Just over half of respondents in a 2017 national survey opposed “allowing all employers to get an exemption from covering the cost of prescription birth control in their health plans, if they object to birth control for religious reasons”; a similar proportion opposed such an exemption granted on moral grounds.25
- A national poll taken shortly before the 2016 election showed that among Catholic likely voters, 79% agreed health insurers should be required to offer birth control coverage and 54% agreed insurers “should be required to offer health plans that cover abortion for women who want that coverage.”26
- Likely voters consistently oppose religious refusals by hospitals that accept public funding.24,26
RECENT STATE ACTION ON THIS ISSUE
States that have addressed this issue in the past three years are listed below.
E: State enacted a relevant measure
V: State vetoed measure
A: State adopted measure in at least one chamber
States that have a Religious Freedom Restoration Act
South Dakota (2016)
West Virginia (2016)
States that have attempted to implement or expand rights of refusal for abortion services
New Mexico (2015)
1. American College of Obstetricians and Gynecologists, The limits of conscientious refusal in reproductive medicine, Committee Opinion No. 385, Obstetrics & Gynecology, 2007, 110(5):1203–1208, http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Ethics/The-Limits-of-Conscientious-Refusal-in-Reproductive-Medicine.
2. Louisiana Revised Statutes 40:1061.20.
3. Sonfield A, Learning from experience: where religious liberty meets reproductive rights, Guttmacher Policy Review, 2016, 19:1–8, https://www.guttmacher.org/gpr/2016/learning-experience-where-religious-liberty-meets-reproductive-rights.
4. Idaho Statutes 18-611.
5. North Carolina General Statutes 14-45.1.
6. North Carolina General Statutes 90-410.
7. Utah Code 76-7-306.
8. Oregon Revised Statutes 743A.066.
9. Mississippi Code 41-107.
10. North Carolina Board of Pharmacy, Frequently asked questions for pharmacists on conscience clause, 2005, http://www.ncbop.org/faqs/Pharmacist/faq_ConscienceClause.htm.
11. California Business and Professions Code 733.
12. Revised Code of Washington 70.47.160.
13. Oregon Revised Statutes 435.485.
14. Sonfield A et al., The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, New York: Guttmacher Institute, 2013, https://www.guttmacher.org/report/social-and-economic-benefits-womens-ability-determine-whether-and-when-have-children.
15. Sonfield A, Contraceptive coverage at the U.S. Supreme Court: countering the rhetoric with evidence, Guttmacher Policy Review, 2014, 17(1):2–8, https://www.guttmacher.org/gpr/2014/03/contraceptive-coverage-us-supreme-court-countering-rhetoric-evidence.
16. Kavanaugh ML and Anderson RM, Contraception and Beyond: The Health Benefits of Services Provided at Family Planning Centers, New York: Guttmacher Institute, 2013, https://www.guttmacher.org/report/contraception-and-beyond-health-benefits-services-provided-family-planning-centers.
17. Sonfield A, What women already know: documenting the social and economic benefits of family planning, Guttmacher Policy Review, 2013, 16(1):8–12, https://www.guttmacher.org/gpr/2013/03/what-women-already-know-documenting-social-and-economic-benefits-family-planning.
18. Testimony of Guttmacher Institute, submitted to the Committee on Preventive Services for Women, Institute of Medicine, Jan. 12, 2011, http://www.guttmacher.org/pubs/CPSW-testimony.pdf.
19. Trussell J, Update on and correction to the cost effectiveness of contraceptives in the United States, Contraception, 2012, 85(2):218.
20. Finer LB and Zolna MR, Declines in unintended pregnancy in the United States, 2008–2011, New England Journal of Medicine, 2016, 374(9):843–852.
21. Jones RK, Upadhyay UD and Weitz TA, At what cost?: Payment for abortion care by U.S. women, Women’s Health Issues, 2013, 23(3):e173–e178.
22. Zane S et al., Abortion-related mortality in the United States: 1998–2010, Obstetrics and Gynecology, 2015, 126(2):258–265.
23. Sonfield A, In bad faith: how conservatives are weaponizing “religious liberty” to allow institutions to discriminate, Guttmacher Policy Review, 2018, 21:23-28, https://www.guttmacher.org/gpr/2018/05/bad-faith-how-conservatives-are-weaponizing-religious-liberty-allow-institutions.
24. National Women’s Law Center and Greenberg Quinlan Rosner Research, Voters Oppose Religious Exemption Laws: Finding from a National Survey of Voters, 2017, https://nwlc.org/wp-content/uploads/2017/05/NWLC-Refusals-Memo-May-11-2017.pdf.
25. Kaiser Family Foundation, Kaiser Health Tracking Poll—June 2017: ACA, Replacement Plan, and Medicaid, 2017, http://files.kff.org/attachment/Topline-Kaiser-Health-Tracking-Poll-June-2017-ACA-Replacement-Plan-and-Medicaid.
26. Catholics for Choice and Belden Russonello Strategists, 2016 Survey of Catholic Likely Voters, 2016, http://www.catholicsforchoice.org/wp-content/uploads/2016/10/2016-Catholic-Voter-Poll.pdf.