Presidential candidates, the Christian Right, and the entire state of Indiana are still reeling from the fallout over Indiana’s recent attempt to enact a broad “religious freedom” law designed to allow for LGBT discrimination. And despite the national outrage over that law, similar fights are brewing in Arkansas and Louisiana.
Most of the conversation around these state-level policies, which are modeled on the federal Religious Freedom Restoration Act (RFRA), centers on the legislation’s discriminatory effect on LGBT citizens. Indeed, the people who drafted Indiana’s law were quite specific about the fact that it was intended to allow businesses to refuse service to LGBT individuals based on their sexual orientation.
But, as Dalia Lithwick recently pointed out in Slate, these “religious freedom” arguments are actually rooted in a much older fight that has implications stretching beyond the LGBT community. Over the past several decades, states have quietly been expanding the scope of their religious liberty laws to allow medical professionals to refuse to provide basic health services they oppose on religious grounds. And those services invariably end up falling under the category of reproductive rights, since that particular aspect of women’s medical care often gets caught in the crossfires of religious debates.
“It’s great that so many groups are speaking out against the ways state RFRAs can harm LGBT people and discriminate against them. What’s equally true is that these laws can also inflict serious harm on women by denying them essential health care, such as contraceptive coverage, emergency contraception, sterilization and abortion procedures, and more,” Sally Steenland, the director of the Faith and Progressive Policy Initiative at the Center for American Progress, told ThinkProgress.
One recent case in Georgia, in which a woman was unable to receive the medication she needed to treat her miscarriage because of her local pharmacists’ objections to abortion, appears to provide an example of what Steenland is referencing.
After Brittany Cartrett had a miscarriage at about six weeks of pregnancy, her doctor prescribed her abortion-inducing medication to facilitate the completion of the pregnancy (an alternative to a more invasive surgical procedure). But when Cartrett attempted to fill that prescription at her local Wal-Mart, the pharmacist refused. And when she visited a different pharmacy, the employee behind the counter also refused, saying, “I couldn’t think of a valid reason why you would need this prescription.” Cartrett told local outlet WGXA the experience was “very frustrating.”
“A woman who has just learned that she lost her baby shouldn’t have to spend time shopping for a pharmacist who will fill the prescription her doctor has ordered,” Amy Morton, the chairwoman of progressive advocacy organization Better Georgia, told ThinkProgress via email. “There are women all over Georgia — particularly in rural areas — who don’t have the option of going to another pharmacy if their pharmacist refuses to fill a prescription.”
But, thanks to the proliferation of so-called “conscience clauses” that arose in response to Roe v. Wade, that’s perfectly legal in Morton’s state.
Spurred by the legalization of abortion, states quickly moved to allow health care professionals to refuse to provide these services without facing legal consequences. According to the Guttmacher Institute, 46 states allow some health care providers to refuse to provide abortion services to patients based on their moral objections to the procedure. Six states — including Georgia — specifically allow pharmacists to refuse to fill prescriptions on religious grounds, while an additional five have broad laws that could be interpreted to allow for those scenarios. The National Women’s Law Center has tracked instances in at least 24 states where pharmacists have declined to fill prescriptions for birth control or emergency contraception.
So, just like how states’ overly broad RFRA laws can be used to allow anti-gay businesses to deny services from LGBT people, this particular interpretation of “religious freedom” can also allow anti-choice doctors and pharmacists to deny services from women. And there’s no question that this framework is being advanced to the detriment of women’s health care access: It was also the argument at the heart of the recent Hobby Lobby case, when the Supreme Court decided that some private companies should be allowed to refuse birth control services to their employees based on their own moral objections to contraception.
RFRA laws’ potential impact on reproductive rights wasn’t a major talking point during the national fight over Indiana’s law. But it’s important to see the issues of LGBT rights and reproductive rights as interconnected, according to two law professors — Doug NeJaime of the University of California, Irvine School of Law and Reva Siegel of Yale Law School — who authored a forthcoming law review article on the subject of conscience clauses.
“Those asserting claims about same-sex marriage are self-consciously drawing on objections to abortion and contraception as they advance objections to interacting with persons in same-sex relationships,” NeJaimes and Siegel told Slate. “These conscience objections run beyond the wedding industry to implicate a much broader set of goods and services, including healthcare and employment benefits.”
Leading reproductive rights organization are certainly connecting the dots. On Tuesday, Planned Parenthood President Cecile Richards released a statement declaring, “Policies that give businesses and organizations a license to discriminate hurt many people, including women who need access to reproductive health care. It’s unconscionable that Brittany Cartrett had to shop around to find a pharmacy that would give her medication to complete a miscarriage.”