As medical technologies and legal theories have advanced, conscience clauses have likewise evolved to protect the rights of medical providers. Generally, a conscience clause is any legislation that allows a medical provider to refuse to perform certain services because of a moral objection. Recently, in addition to protecting physicians, legislators have started expanding the reach of conscience clauses to protect pharmacists. As legislators increasingly focus on protecting pharmacists who exercise their moral objections by refusing to fill prescriptions, conscience clauses protecting pharmacists’ actions are also receiving increased attention.
A conscience clause does not mandate the action or inaction of medical providers, rather, it grants legal protection to those providers after they act. By granting this protection, the conscience clause denies a remedy to those parties harmed by the moral decisions of their medical provider. If conscience clause protection denies recovery, the only option for the injured party may be to claim that the statute itself is unconstitutional.
A constitutional conflict of this nature requires an examination of the Fourteenth Amendment. It provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although the Fourteenth Amendment protects individuals from discrimination and the deprivation of due process, a violation of these rights must result from state action in order to bring a proper constitutional challenge. Identifying state action where a state passively permits private behavior is not an easy task, but is exactly what any constitutional challenge to a conscience clause requires.
This Note will examine whether, by protecting pharmacists from legal repercussions, a State acts for purposes of a Fourteenth Amendment violation. Current case law reveals that courts generally do not accept arguments claiming the State has acted by passing statutes that merely permit an action to occur. There is some case law, however, recognizing state action where the State has established a custom or practice of adopting otherwise passive legislation. This theory, combined with the Supreme Court’s requirement for a fact-specific analysis, may persuade a court to declare unconstitutional the conscience clause in question. . . .