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Question of the Month ~ June 2012


Q. What states in the Midwest have freedom-of-conscience language in their constitutions
or statutes?

Every state constitution in the Midwest has language guaranteeing freedom of religion, with wording such as the “right to worship God” or “the free exercise and enjoyment of religious profession and worship.” These sections also refer to an individual’s “right” or “liberty” of conscience with regard to religious worship. (Iowa’s constitution is the only one in this region that does not use the word “conscience.”)
In addition to these constitutional protections, many states have inserted statutory language often referred to as “conscience” or “refusal” clauses. These laws most commonly give health care providers and/or institutions the legal right to refuse to provide abortion-related services. The statutes also sometimes extend to other services.
According to the Guttmacher Institute, all 11 Midwestern states permit individual health care providers and institutions to refuse to provide abortion services. In recent years, a legal and policy debate has surfaced over whether the right to refuse should be extended to pharmacists. Guttmacher notes that this rise in state activity is the result of the introduction in the United States of emergency contraception, sometimes referred to as the “morning-after pill.”
Illinois has been at the center of this controversy. That state has one of the most broadly written conscience clauses in the country, the Health Care Right of Conscience Act. Whether this act gives pharmacists the right to refuse to dispense contraception has been part of a multi-year legal battle, since a state regulation was adopted requiring pharmacists to do so. In 2011, an Illinois Circuit Court judge ruled that the regulation violated state and federal religious freedom laws, including the Health Care Right of Conscience Act. That decision has been appealed by the state attorney general’s office.
According to the Guttmacher Institute, South Dakota is the only Midwestern state — and one of six in the country — that explicitly permits pharmacists to refuse to dispense contraceptives.
Earlier this year, Kansas legislators passed a measure (SB 62) that protects an individual from having to prescribe “any device or drug which results in the termination of a pregnancy.” Michigan and Nebraska are among the other states where “conscience” or “refusal” legislation has been introduced or considered in 2012.
Michigan’s SB 975 was introduced earlier this year. Under the legislation, health facilities (including pharmacies) could decline to perform certain services, and individual employees could ask to be reassigned to avoid duties that conflict with their religious convictions. In addition, those who purchase or sell health insurance plans could decline to cover a service that, as a matter of conscience, they deem objectionable. SB 975 extends these refusal protections to scientific and medical researchers as well.
Nebraska’s LB 461, the Freedom of Conscience Act, did not advance out of committee this year.


Question of the Month response written by Tim Anderson, publications manager for CSG Midwest.