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.

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 non-viable 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 other-
wise, 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. According to the minutes, hopes were dim. One lawyer present referred to Taylor v. St. Vincent’s Hospital as “Custer’s last stand,” a battle for institutional autonomy that the Church was destined to lose.

The group’s pessimism was fueled by knowledge of recent civil rights cases, which, taken together, provided patrons and employees of hospitals an unprecedented path to influence hospital policy and practice. Crucial among these was the 1961 case of Burton v. Wilmington Parking Authority, which established the principle that a court, by weighing the degree and specific circumstances of government regulation and support, could find that what was otherwise a private entity could be considered a “state actor”—in effect, an arm of the government. In Burton, a privately owned restaurant operated inside a publicly owned parking deck; as a “private” business, the restaurant limited its service to whites. The Supreme Court rejected the idea that the restaurant was private. Since the equal protection clause of the Fourteenth Amendment applies to “state actors,” the decision meant that nominally “private” agencies could be required to conform to its dictates if they were entangled with government. According to Burton, for the purpose of enforcing constitutional rights, a private entity could be regarded as a public one.

The civil rights movement was quick to capitalize on Burton to desegregate a number of institutions. In the 1962 case of Simkins v. Moses Cone Memorial Hospital, a federal appeals court found that government funding of a private hospital turned the hospital’s acts into state action, and thus governed by equal protection standards—meaning that Moses Cone could not reject admission to or segregate black patients, nor could it refuse qualified black doctors the privilege of practice.

As Church officials knew well, every major Catholic hospital would be subject to the same finding of “state action.” Since World War II, Catholic hospitals participated in numerous, well-funded public programs: from construction to bill collection, no aspect of hospital operation was beyond government reach. In deference to this admixture between public and private, the government adopted a particular approach when it came to the legal standing of Catholic hospitals: from the standpoint of service provision, they were held to state and federal standards of a nonprofit charity; viewed as federal income earners, they were religious and exempt from taxes on those grounds.

This brokered truce left many questions of service provision unresolved by the time of the Simkins decision. The Church was especially concerned with the legal standing of its code of ethics for hospitals, a general mission statement approved by the USCCB in 1955, and, more specifically, the appended Ethical and Religious Directives for Catholic Health Care Services, an enumeration of prohibited medical procedures deemed to violate the faith and morals teachings of the Catholic Church. When first developed, these norms did not diverge dramatically from accepted medical practice. Over time, some problematic gaps emerged, many of them concerning the manner in which a woman could govern her reproductive choices. The Church’s prohibition of tubal ligations in the case of a married woman with children like Gloria Jeane Taylor, for example, had long troubled some of the Catholic sisters who worked in a hospital owned by their religious house; one administrator confessed that she felt “guilt” whenever she denied permission for the procedure. The Directives also disallowed the birth control pill and medically assisted methods of impregnation, removing popular options for those receiving care in Catholic hospitals, most of whom were not Catholic.

It was only a matter of time before the tension between Catholic hospital policy and changing social mores erupted into a legal dispute. The 1968 release of the papal encyclical on birth control, Humanae Vitae, only deepened the divide between Catholic teaching and common practice. The papal commission established to advise Pope Paul VI in advance of his writing the encyclical included close to sixty members, only four of whom voted in favor of upholding the Church’s prohibition against all forms of birth control in all situations. In a fateful decision, Pope Paul VI aligned the authority of his office behind the four.

This radical position provoked a divided response within the American Catholic Church. Many Catholics focused on the teachings of the Second Vatican Council, which met under the leadership of reformist Pope John XXIII from 1962 to 1965. “Vatican II,” as it was called, made a number of doctrinal changes in Church teaching and discipline—especially in recognition of the importance of individual conscience and, consequently, the right of Catholics to dissent from Church doctrine. And many did dissent from Humanae Vitae.

Humanae Vitae, however, also revitalized organization among deeply conservative Catholics like Paul Weyrich, then a moderately well-known Republican Senate staffer who would soon become the visionary behind the establishment of the Heritage Foundation. Weyrich seized upon the encyclical to rally Catholics who, like him, were put off by a number of Vatican II reforms, by the prominence of clerical voices in the civil rights movement, and by the occasional Catholic voice in opposition to the U.S. war in Vietnam. Adopting the language of Senator Joseph McCarthy, his fellow Wisconsin Republican and Catholic, Weyrich engaged in a torrent of denunciation of Catholics who were “disloyal” to the pope and Humanae Vitae. He also supported Washington, D.C.’s Cardinal Patrick O’Boyle in a showdown with theologians at the Catholic University of America who refused to present Church doctrine on birth control as infallible. When it comes to birth control, most Catholics, measured by word or by deed, supported the rights of dissent. But clerical and lay traditionalists mounted the more determined efforts, and today we live with, and regard as natural, the many results of their efforts.

Paramount among these is the conscience clause, a political victory for Catholic traditionalists achieved on behalf of Catholic hospitals, and with reference to their growing importance. By the 1960s, no other group of nonprofit charitable hospitals stood in a comparable position. Other religiously affiliated facilities either did not operate under a similar set of restrictive ethical guidelines or were too few in number to constitute a systematic impediment to care. But Catholic-affiliated hospitals comprised roughly one-third of the total network of private hospitals in the country. By the Church’s own reckoning, in 285 cities or incorporated areas in the U.S. a Catholic hospital was the only general hospital facility available to the public.

The initial “right of refusal” established by American law was the exemption allowing conscientious objection to a wartime draft—an idea that dates back to the earliest drafts of the First Amendment but has been recognized only by statute. The first successful bid to establish an individual right of refusal in everyday life came in 1958, via an order issued by the Board of Hospitals in New York City. The order authorized distribution of contraception in hospitals under the board’s jurisdiction, but simultaneously exempted “physicians, nurses, and other hospital personnel who have religious or moral objections” from participating in anything objectionable to them. Despite winning this reprieve for their personnel, Catholic officials bemoaned the board’s action, worried that the gulf between the Directives and patients’ expectations would widen over time.

In this regard, no issue was more volatile than abortion, a taboo subject throughout the 1950s that nevertheless captured the attention of medical and legal professionals, many of whom expressed unease over the predictable consequences of furtive illegal abortions, including the death of the mother. In 1959, the American Law Institute (ALI), a group of legal professionals who periodically gathered to develop “model codes,” proposed a new model code on what it called “therapeutic abortions”: an abortion provided at the request of the mother and on the advice of her doctor in instances of rape, incest, or a medical determination that the fetus was gravely deformed (during this time, rubella infection in a pregnant women was one very common reason for this conclusion).

Hospitals had long provided abortions in cases such as these, but they did so secretly and at their own risk. Abortion was defined as a misdemeanor or a felony in all states—or in some instances, as a misdemeanor if it occurred in the first trimester and a felony at any point afterward. The only exception typically allowed in the criminal statutes was if the life of the mother was in danger. The ALI regarded this as untenable, and suggested that, in the enumerated cases, if two physicians certified in writing the necessity of an abortion, then the procedure should be legal.

In April 1967, Colorado became the first in the nation to adopt the law institute’s model code—though not without turmoil, and not without modification. Polls in Colorado mirrored national trends in showing that most people, including a majority of Catholics, supported therapeutic abortion laws. But a committed group of Catholic traditionalists mounted a spectacular campaign against the bill, interrupting hearings with shouts and subjecting legislators to such verbal abuse that two of the state’s Catholic Conference leaders issued a formal apology. Sam Taylor, the state senate’s top Democrat and a determined opponent of liberalization, offered more than a dozen amendments, each designed to weaken support or hamper implementation. In the end, only one of Taylor’s gambits succeeded: language that stated, “Nothing herein shall require a hospital to admit any patient under the provisions of this act for the purposes of performing an abortion, nor shall any hospital be required to appoint a special hospital board as defined in this act.” When Colorado passed its bill for therapeutic abortion, the first conscience clause of its kind became law. Surprisingly, the inclusion of institutions along with individuals garnered no attention.

Even more surprising, the enactment of a conscience clause meant little to the CHA and Catholic lawyers. Although many supported the clause and endorsed efforts to replicate it in other states, officials doubted that an institutional right of refusal could withstand a legal challenge.

So, even as the Church collected political victories in the form of individual state conscience clauses, the CHA and the USCCB remained focused on a move designed to protect them in court: revision of the Directives, by now a chronic source of frustration for hospital administrators. The work was divided into two separate phases, legal and moral, each with its own set of participants. By the time the lawyers concluded their deliberations, they had affirmed a private nonprofit hospital’s right to prohibit or restrict otherwise legitimate services—“unless” a number of conditions prevailed, in which case the hospital forfeited this right. The qualifications enumerated included the acceptance of public money, and instances when the hospital agreed to serve as a community health facility (or both).

In February 1969, the work of revision moved to its theological phase. These discussions proved more discordant, and less focused, than that of the legal group. The major sticking point was disagreement among participants regarding the need to avoid material “cooperation” in sin versus respect for an individual’s conscience. Unable to resolve this difficulty, USCCB staff turned to three theologians to produce a working draft of the Directives for the bishops to consider at one of their two biannual meetings. The theologians opted to retain specific prohibitions, but rewrote the preamble to allow “local conditions” to prevail in their interpretation.

The Catholic bishops received this suggestion as a challenge to their own authority and turned to the USCCB’s own Committee on Doctrine to revise it. Their draft marks the first time any constituent member of Church hierarchy claimed an institutional freedom of religion, a bold pronouncement that was paired with the equally strident view that hospital cooperation in certain acts would give “scandal” in the biblical sense—bringing the Church itself into disgrace, or serving as a stumbling block to the faith of ordinary Catholics.

But in the end, the most interesting fact about the Doctrine Committee’s work is that no one outside a small set of Church insiders ever saw it. Participants in the groups convened to revise the Directives were aghast at the reactionary document, denouncing it in no uncertain terms. Faced with the prospect of another damaging public dispute, the USCCB staff jettisoned much of the Doctrine Committee’s work. Traditionalists in favor of an authoritarian approach to Church doctrine had auditioned a bold claim of institutional conscience, and failed. So too had those who looked to substantially alter particular guidelines, or formally award authority to resolve ethical dilemmas to an individual’s conscience. After three years of work, with neither view able to command the day, the final version of the Directives approved by the USCCB in November 1971 did not look very different from its predecessor. What seemed like static church doctrine was actually a stalemate.

A year after the bishops endorsed the “updated” Directives, subpoenas issued for the impending trial in Taylor v. St. Vincent’s Hospital threatened to expose the disagreements that had deadlocked the Church, a point that lawyers gathered to discuss the case acknowledged in explicit terms. While counsel for St. Vincent followed the advice of the CHA and USCCB lawyers to delay the Taylor trial, Catholic officials received an unexpected boon from an unlikely source: the January 1973 Supreme Court ruling of Roe v. Wade, or, more specifically, from Doe v. Bolton, the decision’s often overlooked companion case. In Doe, a challenge to Georgia’s 1968 law on therapeutic abortion, lawyers for the plaintiffs argued that even the “reformed” procedures based on the ALI model code were unconstitutionally burdensome. In Georgia, these procedures included the written concurrence of three doctors.

Though it is not widely known today, Doe was long the lead abortion case in Justice Harry Blackmun’s mind. As Blackmun’s biographer Linda Greenhouse recounts, when newly appointed Justice Lewis Powell urged Blackmun to make Roe the lead case, Blackmun complied, moving much of his draft opinion from Doe into what would become the landmark Roe v. Wade ruling. But some elements specific to Doe were retained in that opinion. As Blackmun gathered momentum for his eventual 7-2 majority by circulating the drafts, he suggested to his fellow justices that it might be worthwhile to underscore what “remains of the Georgia statute,” including “that the hospital may refuse an abortion patient and a physician, a hospital staff member, or a hospital employee may refuse, on moral or religious grounds, to participate in the abortion procedure.” When the Supreme Court issued its Roe ruling, the opinion approvingly mentioned the Georgia’s conscience clause, modeled after the original version in Colorado.

Nothing demonstrates the sagacity of the Catholic Church legal counsel more than their recognition that Doe’s mention of Georgia’s conscience clause was not enough to cordon off the degree of autonomy they desired for Catholic-affiliated hospitals. That is not to say Doe was unimportant in their eyes. Shortly after the ruling, the CHA called a series of emergency meetings to encourage constituent members to lobby for the adoption of a conscience clause in each state. But these clauses meant nothing if they could be challenged in court and overturned. There were specific circumstances that could compel a hospital to provide an abortion that the Doe ruling did not mention, much less address. Foremost among these was a court finding of “state action,” and of particular concern within that holding was the status of a private nonprofit hospital that served as the sole facility providing services to a community—as was the case in Taylor. Accordingly, the USCCB set to work on the most crucial task of all: a federal conscience clause.

In order to secure this goal, the USCCB turned to Senator Frank Church, a young Democrat from Idaho. Church is the central actor in this part of the story, and the first federal conscience clause is still known today as the Church Amendment. His motivation in sponsoring the legislation is not entirely clear, but he was likely aware of a pending case in Idaho, Watkins v. Mercy Medical Center. In Watkins, a physician who refused to subscribe to the Directives was suing a Catholic hospital that had denied him admitting privileges. In many ways, from the perspective of the Catholic hospitals, the case presented issues similar to that of Taylor.

Church is in session: Idaho Senator Frank Church spearheaded the first federal conscience clause, describing private hospitals as having freedom of religion.

It’s also worth noting that in his correspondence to constituents, Church avoided expressing a direct opinion on Roe, but, in his recommendation that abortion rights be left to the states, he clearly felt that those rights were not constitutional in nature.

Whatever his most immediate motivation, Church took to the Senate floor only three weeks after the Supreme Court ruled in Roe to offer a resolution to “protect physicians, other health care personnel, hospitals, and other health care institutions on the exercise of religious or philosophical beliefs which proscribe the performance of abortions or sterilization procedures.” Since previous conscience clauses dealt only with the subject of abortion (and were passed as part of abortion liberalization laws), the addition of “sterilization” suggests that Catholic officials sought to include the Taylor litigation within the scope of new legislation.

From the first, and without citation or reference points, Senator Church described private nonprofit hospitals as possessing a freedom of religion in need of additional safeguards. The effort to secure an institutional right of refusal for nonprofit charities, however, should have been considered in the light of the Fourth Circuit’s decision in Simkins—namely, that a hospital receiving government funding was a state actor. Obviously, a holding of state actor status would have been untenable for “strictly religious” properties protected by the First Amendment, as would the direct government sponsorship and regulation that made such a finding possible in the first place.

For these reasons, Church’s efforts should have been regarded as an attempt to apply religious identity to new organizations, rather than to shore up support for old ones. But when Senator Church appended the language of his joint resolution to an omnibus health appropriations bill in March 1973, only Senator Jacob Javits of New York recognized a potential problem. Javits warned that the Senate was contemplating what might prove to be an “unconstitutional amendment,” and wondered “whether an institution can have a religious view,” and, if exercised in concert with government funding, whether this view violated the establishment clause. In the end, Javits joined the overwhelming majority of senators in an “aye” vote; Senator William J. Fulbright of Arkansas was the only member to vote no.

When the omnibus spending bill moved to the House for consideration, the Health Subcommittee of the House Interstate and Foreign Commerce Committee held hearings on the Senate omnibus health care bill. The committee spent no time discussing the Church amendments. Yet when the bill left the subcommittee, the accompanying report noted, “Because the Committee has been advised that the Church amendment as adopted by the Senate raises serious constitutional issues … the Committee has adopted different language in Section 401(b).” In that section, which would ultimately become law, House lawmakers added “any court” to “any public official” as among those barred from requiring recognition of a woman’s right to abortion or sterilization as a condition for receipt of public funds.

The addition of “any court” clarified the real target of the federal conscience clause: the judiciary. By using Congress’s power to shape appropriate “subject matter jurisdiction” for the courts, the Church Amendment factored directly into cases alleging that a medical institution operated “under color of state law” and was therefore susceptible to suit under the equal protection clause of the Fourteenth Amendment. In the face of the reservations expressed by Javits in the Senate regarding the constitutionality of the Church Amendment, the committee, rather than prune the text, opted to expand its purview and circumscribe the power of the courts to consider the question.

Though largely undetected, this change was not unremarked upon. At some point that spring, the House subcommittee staff sought an evaluation of the bill from the American Law Division of the Congressional Research Service (CRS). A careful response from the CRS lawyer John D. Sargent arrived after the measure had passed out of committee but before floor debate. In it, Sargent acknowledged that Doe v. Bolton confirmed that the Supreme Court had favorably mentioned an institutional right of refusal. But, Sargent explained, Doe had not tested that prerogative against other rights, including that of a physician to prescribe care. Then Sargent turned to the matter he found most distressing: the provision ousting federal courts from jurisdiction under such cases. The CRS lawyer offered precedents to show that the “receipt of federal funds is an important consideration in determining conduct ‘under color of law’ or ‘state action.’ ” He then reviewed congressional power to limit jurisdiction of both federal and, using implied powers, state courts, concluding that the amendment might be constitutional. “However, it is likewise arguable that the Subcommittee proposal is constitutionally defective,” he added, citing an 1871 case, United States v. Klein, to support that contention.

In Klein, the Supreme Court reviewed a federal statute that prescribed how federal courts could consider a presidential pardon to former Confederates. Such a pardon was to be considered as conclusive evidence of disloyalty, meaning that the individual’s property was forfeit. Once the pardon was filed, the statute said, the courts had no jurisdiction to hear further argument of the loyalty issue. The Supreme Court set aside the statute, arguing that the “jurisdiction” provision was really an attempt to force on the federal courts a “rule of decision”—that is, requiring them to decide a whole class of cases for one particular side. Congress, the Court said, “may not accomplish certain forbidden substantive acts by casting them in jurisdictional terms.”

Sargent then combined his two major concerns into one passage:

 

[T]here may very well be a constitutional right of some nature which requires that a medical facility or an individual not refuse, in every instance, to perform abortions or sterilizations. If so, the Subcommittee proposal, to the extent that it removes the availability of the courts to redress a deprivation of that right, may constitute a fated [sic] attempt by Congress … to accomplish certain forbidden substantive acts by casting them in jurisdictional terms.

 

The subcommittee staff gave this expression of concern a terse response. True, as written section 401(b) denied a finding of state action based on spending programs included in the omnibus bill, but the staff noted that the amendment did not bar a judge from considering a hospital’s receipt of public money from programs that did not happen to be in the statute. Though made aware of serious concerns from the CRS, Congress did not undertake any great effort to dispel them.

Debate in the House on the conscience clause was desultory; only Bella Abzug raised objections. President Richard Nixon signed the bill into law on June 18, 1973; the federal conscience clause took effect exactly twenty-one weeks after the Roe ruling. Later that same year, the U.S. district judge in the Taylor case court, citing the Church Amendment, dissolved his original order for preliminary injunctive relief. Absent Frank Church’s efforts, the ultimate decision in the Taylor case might very well have circumscribed the ability of Catholic-affiliated hospitals to refuse care. Instead of unquestioned—and in key respects unsubstantiated—claims of religious identity conferred onto nonprofit charities, we might have a world in which Tamesha Means received the care and medical advice she was entitled to the moment she set foot in a hospital.

Interestingly, despite Church’s best efforts, a conscience clause was actually reviewed in court. After the Supreme Court’s Roe decision forced state legislatures to rewrite their laws on abortion, the state of Kentucky responded by introducing a new set of overtly hostile regulations, such as waiting periods and spousal consent. The revised law also included a conscience clause applicable to both public and private hospitals. When a class action suit known as Wolfe v. Schroering challenged Kentucky’s new restrictions, the U.S. District Court for the Western District of Kentucky agreed with the plaintiffs and struck the new law down in its entirety, “institutional” conscience clause included.

When the Sixth Circuit of Appeals took up Wolfe in 1975, the legal department of the USCCB sprang into action. To quote a memorandum from that office, USCCB lawyers “wrote the brief for the State of Kentucky” filed before the appeals court. In section III of that brief, Kentucky asked the court to affirm the validity of the conscience clause by pointing to the broad consensus in favor of it, as indicated by the number of legislatures that had adopted it, and naturally they cited as well.

Their argument prevailed. The Sixth Circuit appeared to take the religious identity of private nonprofit hospitals for granted. Its decision in Wolfe affirmed the conscience clause as it applied to private nonprofit hospitals, even as it struck down other restrictions contained in the Kentucky law.

Since that time, inspection of the religious identity claimed by private nonprofit charities has been just as casual. As a result, women like Tamesha Means not only suffer in the name of beliefs that are not their own, they join all other taxpayers in subsidizing that injury.

During the most recent gathering of the USCCB in November 2015, participants promised to extend the religious exemption currently in effect for charities on issues of sexual reproduction to marriage equality. The demand for statutory exemption has spread well beyond reproductive issues, and well beyond the Catholic Church. The for-profit corporation in Burwell v. Hobby Lobby sought protection from the Religious Freedom Restoration Act of 1993 because its stockholders were devout evangelical Christians, a fact that they felt endowed their corporation, which had no religious purpose, with a religious identity. The Kentucky county clerk Kim Davis’s refusal to allow anyone in her office to issue marriage licenses to same-sex couples on the basis of her own personal faith extends an institutional right of refusal to a point of absurdity; no finding of “state action” is needed in the case of a county clerk’s office.

In the rush to embrace and expand further the logic of the conscience clause, it is worth reconsidering the fragile basis on which it rests. Forty years ago, women obtained recognition of constitutional rights, but had virtually no access to the political game; as a result, a constitutional right was significantly constrained in exercise almost as soon as it was recognized. But times have changed, and there is no reason for the penalty imposed then to exact such a heavy cost today.

Kathleen J. Frydl

Kathleen J. Frydl is a political historian and author of The GI Bill and The Drug Wars in America, 1940-1973.