The Conscience Defense to Malpractice

Nadia N Sawicki

California Law Review
California Law Review

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate–that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs.

This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or “civil immunity,” is by far the most common procedural protection. In a majority of states, civil immunity is absolute–providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws.

Sawicki NN. The Conscience Defense to Malpractice. Calif Law Rev. 2020;108(1255):1255-1316.

Clinicians’ Involvement in Capital Punishment – Constitutional Implications

Nadia N. Sawicki

New England Journal of Medicine, NEJM
New England Journal of Medicine

If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky’s lethal-injection protocol . . .

Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett’s . . .demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. . . Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process.

Sawicki NN. Clinicians’ Involvement in Capital Punishment – Constitutional Implications. N Engl J Med 371;2 july 10, 2014

The Hollow Promise of Freedom of Conscience

Nadia.N. Sawicki

Cardozo Law Review
Cardozo Law Review

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates–most notably in the medical and military contexts–are predicated on the theory that claims of conscience are worthy of legal respect. This Article, which offers a comprehensive account of the contemporary treatment of conscience, challenges established assumptions and seeks to reframe the debate about the normative value of conscience in American society. This Article first clarifies contemporary understandings of conscience by systematically analyzing its treatment in positive law. It looks beyond the traditional medical, military, and religious contexts, giving a descriptive account of law’s treatment of conscience across various substantive realms, including tax evasion, civil disobedience, discrimination, and even violent terrorism. It demonstrates that legal accommodations are typically granted on an ad hoc basis, without a guiding doctrinal principle. If there is a consistent and coherent justification for treating cases differently, our legal system has thus far failed to provide it. This Article concludes that, in order for American law to reflect the kind of robust, autonomy-based respect for conscience to which every pluralistic society aspires, we must agree on a content-neutral guiding principle for negotiating future claims for legal accommodation. The alternative, the Article posits, is to concede that American society has abandoned the fundamental purpose of conscientious accommodation–namely, protecting the individual from oppressive majoritarian understandings of morality.

Sawicki NN. The Hollow Promise of Freedom of Conscience. 33 Cardozo L. Rev. 1389, 1413-16 (2012)