So while Davis’s actions may not be a perfect parallel to those protected by conscience clauses (or, more accurately, “refusal clauses”)—which allow healthcare professionals to opt out of performing abortions or providing contraceptives if doing so violates their religious or personal beliefs—it acts as a harbinger of what happens when conservatives don’t like a Supreme Court ruling. Two states, North Carolina and Utah, have already decided to allow officials that have “sincerely held religious beliefs” to recuse themselves from participating in same-sex marriages.
The first refusal clause, called the Church Amendment, was passed in 1973 and stated that neither individuals nor facilities that received public funds could be required to perform abortions or sterilizations, or make either personnel or facilities available to perform those services, if doing so was contrary to either the individual or facility’s “religious beliefs or moral convictions.” In 1996, Congress passed the Coats Amendment, which stated that the federal, state and local governments are not allowed to discriminate against “health care entities” that do not undergo abortion training, provide this training, perform abortions, or refer individuals for such training or treatment. The following year, Congress amended Medicaid and Medicare programs such that while a plan couldn’t prevent doctors from providing abortion referral or counseling, it could refuse to pay them for doing so.
At the end of George W. Bush’s second term, his administration passed a regulation that allowed health workers, hospitals and insurance companies to refuse to provide abortions or other services that violated “a religious belief or moral conviction”; the regulation also required facilities that received federal money to certify their compliance with those protections. Shortly after he took office, President Obama repealed the regulation but also issued a new rule that retained federal conscience protection for abortions and sterilizations.
Incidentally, medical professionals who actually provide abortion care are offered few legal protections. The Freedom of Access to Clinic Entrances Act didn’t become law until 1994, and is designed to protect patients and healthcare providers alike. Individual states and jurisdictions have also enacted “bubble zone” laws intended to safeguard abortion clinic employees and patients; in 2014, the Supreme Court struck down Massachusetts’ version of this law.
The real-world effect of refusal clauses has been profound, from the ambulance worker who refused to transport a patient that needed an abortion to the pharmacist who refused to transfer a patient’s prescription for contraceptives to another pharmacy. In 2011, a federal judge ruled that twelve nurses employed by a New Jersey hospital who opposed providing abortion services on moral and religious grounds did not have to assist in any part of elective abortion care—including caring for a patient before and after her procedure, taking her blood pressure, or even writing down her name. The nurses would have to provide care in a life-threatening situation, but only if no other nurse was available, and only until another nurse could take over.
In February 2012, a federal judge ruled that the state of Washington couldn’t force pharmacies to sell emergency contraception, such as Plan B, if they had religious objections to doing so.
While the state appealed that ruling and eventually prevailed in court, doing so took three years and countless hours and dollars that could have been put to better use than reminding people that just because they disagree with someone's choices, that doesn't give them the right to dictate to that person what the "right" choices are—particularly when it comes to a person’s private health decisions.
Because it’s crazy, isn’t it, to think that your pharmacist should have a say about whether it’s appropriate for you to take a medication that you and your doctor have already deemed necessary? Well, yes, it is. Most people would think that if they need a medication, and their doctor agrees and writes a prescription, that that’s the end of the story. But refusal clauses fly in the face of all sorts of reasonable assumptions, like how a doctor trained in the kind of care you need will help you when you seek medical treatment. What is not and should not be a reasonable assumption is that a trained medical professional will refuse to provide care in a work setting because, in their personal life, they disagree with what that care signifies.
Likewise, I’m sure some county clerk somewhere in this country has been asked to handle paperwork that involves something they personally disagree with. But until Kim Davis decided to literally make a federal case out of her dislike of same-sex marriage, such decisions didn’t make headlines. Now that her deputies are doing issuing licenses over her objections, the ACLU is alleging that Davis is tampering with those licenses, despite orders not to interfere with her deputies’ work.
The law that Kim Davis is so hellbent on defying does nothing more or less than give people equal rights. It provides men and women with a measure of autonomy and choice that had been unfairly denied them for generations. And in this, Davis’s crusade is a perfect parallel to the story of refusal clauses, which also came about because a law gave women autonomy and choice, and some people thought that was wrong. Constraining an individual’s choice in their healthcare decisions due to someone else’s objections is as nonsensical as telling a couple that they can’t get married because some stranger believes they shouldn’t. For too long, refusal clauses have allowed unnecessary outside interference in women’s reproductive healthcare. The same thing must not be allowed to happen in the wake of the landmark Obergefell ruling.
Sarah Erdreich is the author of Generation Roe: Inside the Future of the Pro-Choice Movement. She lives with her family in Washington, D.C.