Unilateral Burdens and Third-Party Harms: Abortion Conscience Laws as Policy Outliers

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article argues that state abortion conscience laws should incorporate limitations similar to those established in the Civil Rights Act and the Americans with Disabilities Act in order to minimize risks to third parties who might be harmed by provider refusals