For the past decade, a blockbuster religion law case has been a feature of every Supreme Court term. The Court dramatically eased the ability of employers to claim religious exemptions. It overturned long-standing Establishment Clause precedent. And it revolutionized Free Exercise Clause doctrine to favor objectors to public health measures and antidiscrimination laws. With no religious liberty claim on the docket, the 2023-24 term promised to be the exception.
Nevertheless, in a pair of abortion cases, the Court took the opportunity to broadly interpret federal conscience law to override patients’ rights to emergency care. The first, Food and Drug Administration v. Alliance for Hippocratic Medicine (AHM), challenged the FDA’s approval of mifepristone, the abortion pill. The second, Moyle v. United States, involved the conflict between state abortion bans and the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires life- and health-saving care, including abortion, in emergency departments. Neither seemed to implicate the Church Amendment of 1973, which allows individual providers and institutions to refuse to perform or participate in abortion for religious or moral reasons.
Yet, conscience legislation became central. In AHM, plaintiffs argued that they had standing because EMTALA might oblige an emergency physician to violate his conscience by providing a procedural abortion or follow-up care to a patient who had taken mifepristone. The Supreme Court initially concluded that EMTALA did not apply to individual doctors. It could have stopped there. Instead, it opined that federal conscience law “definitively” shields doctors from delivering abortion or other treatment in emergencies. And, at least for individuals, the Court stated “that strong protection for conscience remains true even in a so-called healthcare desert, where other doctors are not readily available,” Doctors can let a patient bleed out if they assert conscience, even where no one else can come to her aid.
In dismissing Moyle as improvidently granted, several justices went further. Writing for three justices, Justice Barrett worried that hospitals might be required to deliver life- and health-saving abortions. She was reassured by the government’s concession that federal conscience law authorized institutions, like individuals, to refuse.
Together, AHM and Moyle mark a dramatic shift in so-called conscience protection at the federal level. EMTALA—and patients’ interests in life and health—had long been understood to prevail over providers’ religious objections. The sponsors of various conscience-related laws and budget riders made explicit that religious and moral beliefs would not relieve providers of duties of emergency care. Multiple times, Congress considered but rejected conscience carve-outs to EMTALA. And when the Trump administration issued a rule in 2019 authorizing denial of care where a patient was experiencing ectopic pregnancy, miscarrying, or otherwise in need of emergency care, multiple federal courts vacated the rule as not in accordance with EMTALA.
While the discussion of conscience might be labeled mere dicta, advocates, providers, and enterprising lower courts are likely to read the Court to permit refusal of emergency abortions nationwide. Indeed, anti-abortion activists celebrated what otherwise looked like a loss in AHM as “a huge win.” Some individuals will deny care as pregnant people suffer serious jeopardy to their lives and health.
The biggest danger comes from hospitals refusing to provide care. In particular, Catholic facilities—with one in seven hospital beds—stand out for their size. While Catholic religious teachings permit some abortions, these hospitals are most likely to deny emergent care. At a minimum, AHM and Moyle seem likely to encourage them to raise conscience in defense to EMTALA complaints.
Blue states will feel the impact acutely, because many of them have hospital markets dominated by refusing religious institutions. In Washington and Oregon, for example, 30 percent or more of hospital beds are in Catholic facilities. In Illinois, one-third of birthing hospitals are Catholic.
The expansion of conscientious refusal is just one of many religion issues embroiling healthcare. In an attempt to sidestep the Supreme Court’s turbocharged religion clause doctrine, the Department of Health Human Services plans to grant religious healthcare institutions opt-outs from Section 1557, the sex nondiscrimination provision of the Affordable Care Act. In another ongoing development, religious liberty lawsuits seek to swell the ranks of insurers and employers freed of regulation. The Ninth Circuit, for example, is hearing the argument from secular Blue Cross Blue Shield that the Religious Freedom Restoration Act permits it to offer plans without gender-affirming care to all religiously affiliated clients. Vaccines also are prime targets. Healthcare workers resist vaccination as burdening their exercise of religion.
If the past is prologue, such religious liberty blockbusters will soon be back at the Court.
Elizabeth Sepper is Professor of Law at the University of Texas School of Law.
