Conscience Rights Under Attack Again in Illinois

“Resolved: That the guarantee of the rights of conscience, as found in our Constitution, is most sacred and inviolable, . . . and that all attempts to abridge or interfere with these rights, directly or indirectly, have our decided disapprobation, and shall ever have our most effective opposition.” —Abraham Lincoln

Starting more than a decade ago, the ACLJ fought a series of legal battles against the government of Illinois (and some private employers) over the right of pro-life health care professionals to conscientiously object to participating in abortion inducing procedures. In more than half a dozen lawsuits filed in federal and state courts across the length and breadth of Illinois we represented pharmacists, nurses, emergency technicians, and other people employed in the health care field, all of whom sought only to be able to continue to practice their professions without selling their souls in the process.

For the most part, our efforts were blessed with success. The state and private employers whom we sued were forced to change laws or company policies to conform to the requirements of laws and constitutional provisions that reflect the American tradition of giving the widest possible berth to claims of religious non-conformists, a tradition that antedates both the Constitution and the Declaration itself and whose principles underlie both those documents.

In waging those battles, we relied, of course, on the religious liberty principles enshrined in the First Amendment, but even more so on an Illinois law known as the Health Care Right of Conscience Act. That law, one of forty-plus similar laws passed by states in the wake of Roe v. Wade, starts with a strong declaration of principle:

The General Assembly finds and declares that people and organizations hold different beliefs about whether certain health care services are morally acceptable.

It is the public policy of the State of Illinois to respect and protect the right of conscience of all persons who refuse to obtain, receive or accept, or who are engaged in, the delivery of, arrangement for, or payment of health care services and medical care . . . ; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care.

The Health Care Right of Conscience Act outlawed virtually any action by any person – public, private, individual or corporate – that penalized anybody in health care for exercising their conscience rights. The Act was so strong a guarantor of conscience rights that we routinely referred to it as the “gold standard” of conscience laws. And when presented with arguments based on the Health Care Right of Conscience Act, there was little that state or private employers could offer in defense. (In fairness, the latter were usually just reacting to state politicians’ ham-handedness in doing the bidding of Planned Parenthood, NARAL and their ilk by enacting regulations the employers – often reluctantly – were trying to comply with.)

But now, with the shifting of political and cultural tides, and religious liberty falling more and more under a cloud with both public and private elites, Illinois has retreated from its former strong support of conscience rights in an alarming way. On July 29, 2016, Illinois’ governor signed into law an amendment to the Right of Conscience Act that – as the price of asserting their right to conscientious objection – would require all health care facilities and their employees to refer or transfer patients seeking abortions or, at a minimum, hand patients a list of medical providers who are available to provide abortions. For many pro-life health care professionals, each of these options implicates them in moral complicity with abortion to a degree they find unacceptable. They say it puts them in the position of saying, “Sorry, I can’t do this thing you ask of me because I believe it involves killing an innocent human being, but, no problem, here’s a list of people who will. Good luck!”

Perhaps not all those in the health care field who value the sanctity of life would draw the line in the same place. But as Justice Alito observed in the Hobby Lobby case, “the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another” is a “difficult and important question of religion and moral philosophy.” In other words, it’s not a question to be decided in advance by either the courts or Illinois’ politicians.

By watering down the Health Care Right of Conscience Act in this way, the Illinois legislature is attempting to dictate what should and should not be morally acceptable. No power granted by the people to their representatives allows them to decide that question in advance for individual citizens. Provisions of both state and federal law provide a far more flexible, or accommodating, framework for dealing with claims of conscientious objection. Title VII, the Civil Rights Act of 1964, for example, presents a framework that, for the most part, has worked well in balancing the interests at stake whenever claims of religious exemption or conscientious objection arise in the workplace. The government of Illinois cannot second guess either Congress or the Framers on this point.

We at the ACLJ are already exploring strategies to effectively challenge this new law in court. We and others have fought too hard and come too far in this area to permit this kind of backsliding to a time when pro-life medical professionals were subjected to pink slips, licensure revocations, and career-killing blacklisting simply for exercising their God-given right to conscientious objection. What Illinois’ greatest son called the “most sacred and inviolable” rights of conscience must be vindicated in the face of this latest attempt “to abridge or interfere with these rights.”