When Free Exercise Exemptions Undermine Religious Liberty & the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict

Police took a woman who was raped to the emergency room of a Catholic hospital for treatment. Doctors examined the woman, but did not give her any postcoital contraception (the morning-after pill), the standard medical treatment for rape victims used to prevent pregnancy. Even when the patient's mother asked for information about the pill, the physician refused to provide any information. The hospital prohibited the physician from dispensing the pill or giving information about it because it violated Catholic doctrine. Consequently, the plaintiff did not obtain the contraception within the 72-hour window necessary for it to be effective. There is a long-standing conflict between patients and religious hospitals in the area of reproductive health. This conflict is getting renewed media attention because of the growth of religious hospitals and mergers that eliminate reproductive healthcare for underserved communities. To safeguard these services, bills are being proposed that would require all hospitals to provide such care as a condition of government funding and other benefits. Catholic hospitals argue that these laws would infringe on their First Amendment right to deliver health care in a manner that is consistent with their religious beliefs, and that they should be exempt from such laws. While the First Amendment protects religious liberty, current jurisprudence does not appear to provide religious hospitals protection from these laws. Under current law, as set forth in Employment Division v. Smith, only laws that intentionally target conduct because of its religious significance can be challenged. There is no protection from neutral laws of general applicability that unintentionally burden religiously motivated conduct. Laws requiring all hospitals to provide reproductive health care are a prime example of neutral laws of general applicability designed to protect the health and safety of society, but which unintentionally burden Catholic Hospitals' religious freedom. This conflict illustrates a fundamental debate about the proper scope of free exercise protection and whether religiously motivated conduct should be protected from unintentional burdens. In this Article, I argue that courts should abandon the Smith test in favor of a more searching intermediate review, but should not go as far as some states in providing almost absolute free exercise protection from government laws serving important interests. Under this principle, religious freedom should be limited by the government's interest in protecting third parties from harm. The Catholic Hospital conflict provides an important case study to understand how this principle would work in practice. Religious freedom must be balanced against the potential harm to patients who cannot access medically necessary reproductive health care and information. Thus, even under this more protective principle, exemptions should be denied in certain cases, as for example, with informed consent laws or refusals to perform medically necessary care without making safe alternatives. In short, the scenario described at the beginning of this Abstract should not recur. Moreover, granting exemptions in such cases would undermine, not protect, religious liberty because the patient is coerced into a making a treatment decision based on religious beliefs to which s/he does not subscribe.