Taking liberties with religious liberty: the "conscience clause," on which a conservative Supreme Court keeps granting employers exemptions from federal law, was a political decision, and more fragile than liberals realize.

• Author: Frydl, Kathleen J.

In December 2010, when her water broke only eighteen weeks into her pregnancy, Tamesha Means rushed to Mercy Health Partners, her closest hospital and the only provider within a half-hour drive of her home in Muskegon, Michigan. Staff at Mercy Health did not inform Means of the risks that continuing the pregnancy posed to her health, nor did they notify her of any termination options for a nonviable fetus. Instead, they sent her home. Suffering through agonizing pains throughout the night, Means began bleeding. When she returned to Mercy Health the next day, the staff sent her home once again. By this time Means was running a fever and plainly suffering from a severe infection; she once again made the trip to the hospital. As Mercy prepared the paperwork to dismiss her yet again, Tamesha Means began to deliver. Only then did Mercy Health admit her for treatment.

In June of 2015, in response to an ACLU lawsuit filed on Means's behalf, a federal district judge in Michigan ruled that Means was not a patient with rights in need of treatment from a hospital; she was a non-consenting party compelled to observe the teachings of a theological institution. Mercy Health, a Catholic-affiliated hospital, dispensed care according to the Ethical and Religious Directives for Catholic Health Care Services, and according to the judge, allowing the lawsuit to go forward would require the court to decide whether those directives compromised Means's health care--a decision that would "impermissibly intrude upon ecclesiastical matters."

The court reached this conclusion even though Mercy Health is not a church; it is a hospital open to and partially funded by the public, and therefore subject to any number of legal obligations. That the court took for granted that a hospital was protected by a privilege applicable to strictly religious entities speaks to the power of the "conscience clause," statutory language that establishes a right to refuse service to someone if providing it runs counter to deeply held religious or ethical beliefs.

The prerogatives made available by the conscience clause were established by legislation, not some landmark court decision on religious freedom. Amid recent discussion of the rights of conscience, one could be forgiven for assuming otherwise, especially in light of the intentional ambiguity sustained by supporters of a right of refusal who invoke constitutional principles of religious freedom in conversation, and sometimes rely upon them in court.

As a privilege bestowed by politics, the conscience clause is in need of a political history. The lack of one is most distressing, given the Supreme Court's recent move to take several cases that will decide whether religious nonprofit charitable corporations can deny insurance coverage for contraceptive care to their employees, even when they need only file a form stating a religious objection in order to be absolved from sponsoring it directly. In the eyes of the objecting nonprofits, completion of the form is itself complicity in a sinful act. If the Court rules in favor of the nonprofits, other for-profit entities will surely follow suit. As religious exemption cases grow in number and in consequence, it becomes possible to place them in perspective: the effort to carve out exemptions in the name of conscience amounts to one of the most successful conservative tactics deployed against individual rights claims in the modern era.

With so much hinging on it, the initial right of refusal secured by the Catholic Church during the era of abortion liberalization ought to be a well-studied case of compelling merit. Accounts of the conscience clause, however, err in grievous respects. The right of refusal emerged alongside the liberalization of abortion laws starting in 1967, not (contrary to popular belief) in response to the Roe v. Wade decision of 1973. In overlooking this brief but critical stretch of time before Roe, we miss entirely the debates within the Church regarding stewardship of Catholic-affiliated hospitals during an era of change. Prior to Roe, as various states adopted conscience clauses when revising laws on abortion, Catholic leadership operated under the assumption that nonprofit charitable corporations like hospitals belonged to the community, at least in part, and would be compelled to provide care, even when doing so would run counter to standing policy. While Catholic traditionalists made public arguments in support of the right to refuse abortions, officials of the Church privately debated among themselves the circumstances under which Catholic-affiliated hospitals would be obliged to perform them.

It never occurred to participants in those discussions to take refuge under the First Amendment, and no court has required them to make that case since. What is today the premise of proliferating claims of religious liberty--namely, the religious protections extended to a nonprofit charity (and now even to for-profit businesses)--survives intact, but were it not for a highly irregular and poorly understood intervention on the part of the U.S. Congress four decades ago, it would be in tatters. Today, all three branches of government approach the right of refusal as if the religious autonomy of a nonprofit corporation were a constitutional principle beyond dispute. But the trauma endured by Tamesha Means illustrates the dangerous limits of its underlying premise, and suggests that, instead of making concessions, progressives should be building a case for limiting or even eliminating an institutional conscience clause for anything other than a strictly religious corporation.

One such case made significant headway more than forty years ago. In 1972, the doctor for a pregnant woman named Gloria Jeane Taylor agreed to perform a tubal ligation on her after the birth of her second child. As she drew closer to term, Gloria and her husband moved from Alaska to Billings, Montana, where they sought care from the city's sole maternity care provider: St. Vincent Hospital, a Catholic hospital. But St. Vincent denied her permission for the tubal ligation, citing adherence to the Ethical and Religious Directives for Catholic Health Care Services. The hospital's refusal had the effect of barring Taylor from service that was legal and had been recommended by a medical professional.

In response, Taylor and her husband filed suit. In October of 1972, a U.S. district court judge in Montana issued a preliminary injunction ordering the hospital to perform the sterilization. This was not a final ruling in the case, but the standard for such injunctions requires a court to determine that a plaintiff has shown a "likelihood of success" at trial. A short time later, medical staff at St. Vincent performed the procedure on Taylor.

This quiet moment in an operating room was one long dreaded by officials of the Catholic Church. The preliminary injunction left little doubt that a hospital could not deny permission for a voluntary sterilization performed on a married woman, and endorsed by a doctor, on religious grounds alone. Lawyers for the U.S. Conference of Catholic Bishops (USCCB) and the association of Catholic-affiliated hospitals, the Catholic Health Association (CHA), held an emergency meeting to discuss the prospects for the impending trial...