Crisis of Conscience in Post-Roe America

This keynote lecture was presented in November 2022 at the UC San Diego Institute for Practical Ethics and University of San Diego School of Law’s Center for Health Law Policy and Bioethics Conference on The Role of Conscience in the Practice of Medicine and the Rule of Law. It begins by summarizing my previous writing to show that since Roe, the law has systematically favored refusing individuals and institutions. As I concluded more than a decade ago, this asymmetry was unjustified, because “[c]onscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need.” After Dobbs v. Jackson Women’s Health Organization, the asymmetry may deepen. In restrictive states, the crisis of conscience for willing providers will increase, even as rights to refusal expand. I identify several possible complications for the legal framework governing conscience in medicine. Notably, as refusal bills broaden, they may (unintentionally) shield providers committed to delivering at least some care. And as abortion bans grow more severe, hospitals once categorized as refusing may find themselves willing to perform life- and health-saving abortions. They may experience irreconcilable tension between abortion bans and their (religious and moral) healthcare mission. Finally, I turn to issues of conscience in those states seeking to safeguard abortion. The normalization of refusal and the reach of religious healthcare systems will erect major barriers to the expansion of reproductive healthcare in these states. State policies expanding abortion access will have to be carefully designed around shifting constitutional doctrine related to the religion and speech rights of healthcare institutions.