The Supreme Court has made it extremely difficult, if not impossible, to argue that health care workers have a Free Exercise right under the First Amendment to refuse to participate in abortions. With growing governmental powers over health care, many are concerned that legislative conscience protections for health care workers may not be sufficient to protect pro-life doctors and nurses.
Would it be constitutionally permissible for the government to require health care workers to perform abortions, perhaps to alleviate an alleged shortage of abortion services?
I came across an abstract of a recent article by Mark Rienzi on SSRN arguing that there are many more sound arguments for constitutionally protected conscience rights for doctors under the 14th amendment than are available under the 1st amendment.
This is an idea that has been tossed around among pro-life lawyers for some time now. The irony is, of course, that such arguments depend at least in part upon cases such as Planned Parenthood v. Casey to support a claimed constitutional right to refuse to participate in abortion.
Just as a pregnant woman has a 14th amendment right to “define for herself” and a meaning of life that includes recourse to abortion, so also health care workers have a concommitant constitutional right to define their meaning of life to exclude any participation in abortion.
And so the wheel turns…