Many states that tout themselves as protectors of reproductive health care, including California, Michigan and Pennsylvania, have little-noticed laws on the books protecting hospitals that refuse to provide it.
The laws shield at least some hospitals from liability for not providing care they object to on religious grounds, leaving little recourse for patients. The providers — many of them Catholic hospitals — generally refuse to perform abortions and sterilizations because the services run contrary to their religious beliefs, but their objections can extend to other kinds of care.
In our recent reporting on Catholic hospitals, we found that 35 states grant such legal protections to at least some hospitals that won’t provide abortions. About half of those laws don’t include exceptions for emergencies, ectopic pregnancies or miscarriages. Abortion remains broadly legal in 25 of those states.
Sixteen states prohibit lawsuits against hospitals for refusing to perform sterilization procedures.
These laws, many first enacted in the 1960s and 1970s, have flown under the radar following the Supreme Court’s 2022 decision overturning Roe v. Wade. But they carry significant consequences for patients.
“It’s one thing to say that a health-care provider can refrain from providing certain care because of their sincerely held religious beliefs. It’s another thing altogether to say because you have these beliefs you can harm people and face no repercussions for it,” said Elizabeth Sepper, a law professor at the University of Texas at Austin and an expert on religious liberty and health law.
State liability shield laws go further than conscience protections enforced by the federal government. They can limit what’s possible under the Emergency Medical Treatment and Labor Act, the 1986 federal law protecting patient access to emergency care, said Katherine Kraschel, assistant professor of law and health sciences at Northeastern University.
Hospitals that violate EMTALA can be sued by patients, but the federal law also relies on states’ civil liability standards, she said. That means if state law shields a provider from lawsuits over refusing to provide an abortion, EMTALA “won’t always provide relief” to harmed patients, Kraschel said.
Supporters of medical conscience rights have recently had success in broadening protections in several states.
“Faith is meant to be lived out, and it’s meant to be lived out in the professions in which these individuals work,” said David Trimble, vice president for public policy and education at the Religious Freedom Institute, a nonprofit that launched an effort in 2020 alongside other groups to advance state medical conscience laws. If providers are “subject to ruinous lawsuits” for not performing procedures that violate their beliefs, “this not only inflicts significant harm on that individual health-care provider but on the [health-care] system,” he said. Unlike some of the decades-old shield statutes, the newer laws say conscience rights don’t mean providers may deny patients emergency care required by federal law.
Arkansas, Florida, Montana, Ohio and South Carolina have expanded conscience laws to apply to just about any kind of health care. Trimble said Oklahoma, Kentucky, Iowa and Idaho are among the states the group is focused on in 2024.
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