Conscience Legislation, the Personhood Movement, and Access to Emergency Contraception
Will, Jonathan F., Faulkner Law Review
In the medical setting, conscience legislation serves to protect health care professionals who refuse to provide certain procedures or services that would violate their consciences. (1) The "Personhood Movement," on the other hand, is characterized by advocates' attempts to adopt legislation or constitutional amendments at the state and/or federal level that would extend the legal and moral protection associated with personhood to members of the human species at the earliest stages of biological development. (2) The relationship between conscience legislation and the Personhood Movement may not be self-evident, but the connection becomes apparent when considering trends in conscience legislation. (3) This is particularly true in the context of expanding legal protection to health care professionals who object to certain forms of birth control, such as emergency contraception (EC). (4)
Professor Elizabeth Sepper notes that instead of protecting a health care provider's conscience, a possible purpose behind broad conscience legislation is to "make abortions, family planning, and end-of-life care more difficult to obtain," and that the true goal of such legislation is "hostility to reproductive health and patients' interests." (5) Indeed, this essay will suggest that the adoption of a personhood framework could represent majoritarian approval of the very principles that cause certain people to conscientiously object to EC. While some have raised concerns that conscience legislation itself could lead to problems with access to EC (especially in rural communities), (6) adoption of a personhood framework seems to pose a much greater risk. This essay will first describe the expansion of conscience legislation in the medical setting, which reflects a trend toward authorizing the refusal of a broader range of procedures and services by a broader range of health care professionals. It will then draw a connection between Mississippi's very expansive conscience legislation and the decision by a national organization, Personhood USA, to propose a personhood amendment to the Mississippi Constitution. A brief discussion of the relevant biology will reveal the relationship between concepts of personhood and EC. This essay will suggest that even if a personhood framework is not officially adopted, legislatures that favor the movement and the broad protection of conscience-based refusals may be less inclined to enact measures that protect a woman's ability to obtain EC. This should be viewed as problematic given that many people, including physicians and pharmacists, may not have an accurate understanding of the reproductive biology associated with early human development and the
operation of EC, which may lead such professionals to make conscientious objections based on clinically false information.
EXPANDING CONSCIENCE PROTECTION AND THE PERSONHOOD MOVEMENT
Prior to Roe v. Wade, (7) discussions of conscientious objection were most often associated with refusals to participate in military service. (8) But given the controversial nature of the Roe decision, there was an appreciation of that fact that even if a woman has a right to choose to have an abortion, a physician should not be required to perform the procedure if to do so would violate his or her conscience. To that end, federal laws, such as the Church, Coats, and the Weldon Amendments, were enacted to prevent individuals from being required to participate in abortions (or sterilizations) or from being discriminated against due to their unwillingness to participate in those procedures. (9) Individual states quickly followed suit and enacted conscience legislation specifically related to abortion; forty-six of the fifty states currently protect individual providers and nearly as many protect institutions. (10)
In regard to reproductive health, (11) public discussion about the expansion of conscience legislation beyond the abortion procedure itself was ignited (12) in the early 2000s, following the United States Food and Drug Administration's (FDA) approval of mifepristone (RU-486, commonly referred to as the "abortion pill") and various forms of EC (such as "Plan B," commonly known as the "morning-after pill"). …