Codebook –
Health-Care Provision
Federal law protects employees, including health-care providers, from religious discrimination. Additionally, federal law contains many conscience protections for health-care professionals (i.e., individuals) and health-care institutions (e.g., hospitals) who object to participating in certain health services. Many states safeguard free exercise in health-care provision even more broadly. This group of safeguards includes an indicator for the handful of states who provide general conscience protection for health-care providers as well as measures of conscience protections in reproductive services specifically. Within these specific services, states exhibit variation in who has the right to refuse, from what negative consequences the entity is safeguarded, and whether there are limitations to those safeguards.
Federal Context
The Church, Weldon, and Coats-Snowe Amendments together deny federal funding to entities who discriminate against those who refuse to participate in abortion, sterilization, or contraception. RLS, therefore, focuses on a range of other potential protections including civil immunity, criminal immunity, and protection from other state-level government action (e.g., licensure and state funding).
External Source
Sawicki (2019) and others at the Loyola University Chicago School of Law created a dataset of the “Procedural Protections in Reproductive Health Care Conscience Laws” current as of 2019. Using keyword searches within state laws, they create their database of protections, entities protected, and limitations to those protections for each reproductive health-care procedure.[1] RLS uses Sawicki’s protections and limitations data for abortion, sterilization, and contraception and adapts the protected entity data to reflect who has the right to refuse participation in a reproductive health-care procedure. (Sawicki, notably, only asks who with respect to one from what, namely, civil immunity protections, since her overall focus is in the area of exemptions from the consequences of refusing to participate in a health-care procedure.)
Identifying Codes and Assigning Scores
We read the state laws cited by Sawicki, proximately located statutes, and those we located by keyword searches for RLS 2022. We assigned codes to each law according to the entities granted the right of refusal, the consequences the law protects them from, and in the case of abortion, emergency limitations.
Verifying Data
Throughout 2022, BillTrack50 provided the RLS team with updates on relevant bills and state laws related to conscience in health-care provision and all the citations from RLS 2022 data, ultimately revealing one statutory change that impacted many of the codes and scores in one state (South Carolina). The statutes cited for this safeguard, whether changing this year or not, were reread in December 2022 and confirmed with Sawicki (2019). While Sawicki’s data is similar to what we include in RLS in regard to the protections offered and the limitations to those protections, Sawicki’s project focuses on the variety of protections granted rather than the right to refusal. Consequently, RLS data for an entity’s right to refuse does not map perfectly onto the Sawicki data. RLS measures safeguards of religious liberty, that is, states limiting what they can do to individual and institutional actors, and so focuses on consequences that are driven by the state (criminal prosecution and government discrimination) as well as civil liability. Immunity from civil liability is consistent with RLS’s notion of negative liberty if federal or state laws establish or are treated as establishing an affirmative right to abortion. For RLS 2022, it seemed clear that Roe v. Wade (1973) had done so for the relevant time period. Since Dobbs v. Jackson Women’s Health Organization (2022), it is less clear that any federal ruling or laws imply an affirmative right to abortion.[2] The Affordable Care Act continues to establish an affirmative right to contraceptives, as do many states’ own contraceptive mandates.
Notes in our public dataset indicate areas where our scores differ from Sawicki (2019). We identified cases where Sawicki’s team mistakenly reported a missing exemption, especially by ignoring general conscience allowances (which RLS includes) and neglecting definitions in state statutes where the definition of “contraceptive” includes sterilization procedures and thus has implications for sterilization-related items.
Missing Data
Reproductive health-care laws often appear in a variety of places within a state’s law. This makes locating and accounting for all the laws that exist more difficult, as evidenced by Sawicki and her team’s extensive search process. Accordingly, RLS assumes Sawicki’s search process has obtained the relevant citations, and we largely assign our effort to fixing apparent mistakes, updating their findings (the last iteration of that project was completed in 2019), and adapting their measures to our focus on free exercise.
[1] More information about the Sawicki (2019) data collection procedures can be found in their detailed Research Protocol.
[2] RLS users who interpret Dobbs as sufficiently eliminating any governmental basis for arguing a right to abortion may wish to recalculate RLS 2023 scores and ranks by dropping the civil liability item in the abortion refusal safeguard from the aggregation.
Safeguard/Item: Health-Care Provision—General Conscience
Eight states safeguard health-care providers and/or health-care institutions in their right to refuse to provide any medical care procedure based on conscience.
Federal Context
There is no analogous federal law.
External Source
Sawicki (2020) identifies three states with these laws. We find five additional states with these provisions and note that South Carolina passed a general conscience exemption for health-care providers in June 2022.
Possible Scores
(Note that there is no need for an additional code for this item as the score fully captures the objectively understandable variation across states.)
1 = State provides an open-ended conscience protection for health-care providers (safeguard applies to individuals or individuals and institutions)
0 = State does not provide an open-ended conscience protection for health-care providers
Safeguard: Health-Care Provision—Abortion Refusal
(comprised of seven items)
Item: Individual-Level Abortion Refusal—At least some individuals (doctors, physicians, nurses, and/or hospital staff) are safeguarded in their right to refuse to participate in abortion.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but not for individual providers
C = State allows conscience protections in abortion for individual providers
Possible Scores
1 = State safeguards at least one type of individual health-care provider’s right of refusal from performing or participating in any part of abortion procedures (C)
0 = State does not safeguard individual health-care providers’ right of refusal from performing or participating in any part of abortion procedures (A, B)
Item: Private Hospital Abortion Refusal—Private hospitals are permitted to refuse to participate in abortion.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but not for private hospitals
C = State allows conscience protections in abortion for private hospitals
Possible Scores
1 = State safeguards private hospitals’ right of refusal from performing or participating in any part of abortion procedures (C)
0 = State does not safeguard private hospitals’ right of refusal from performing or participating in any part of abortion procedures (A, B)
Item: Public Hospital Abortion Refusal—Public hospitals are permitted to refuse to participate in abortion.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but not for public hospitals
C = State allows conscience protections in abortion for public hospitals
Possible Scores
1 = State safeguards public hospitals’ right of refusal from performing or participating in any part of abortion procedures (C)
0 = State does not safeguard public hospitals’ right of refusal from performing or participating in any part of abortion procedures (A, B)
Item: Refusal in Emergency (Abortion)—The safeguards in the state statutes are not limited by a patient medical emergency.
Note: States may limit conscience protections in other ways, for example, by requiring referral or documentation of a policy of refusal. We selected this measure among potential limitations to the refusal right for its ease of identification and so as to avoid the question of whether having to declare in advance one’s conscience concern, for example, is a restriction on religious exercise or an inconvenience.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections but limits those in the case of patient emergency
C = State allows conscience protections for health-care providers and does not limit those in emergencies
Possible Scores
1 = State does not limit the abortion refusal safeguards in the case of medical emergencies (C)
0 = State does limit the abortion refusal safeguards in the case of medical emergencies (A, B)
Item: Immunity from Civil Liability (Abortion)—State precludes civil liability claims against at least one safeguarded entity in abortion procedures.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but does not preclude civil liabilities due to refusal
C = State allows conscience protections in abortion and specifically precludes civil liabilities
Possible Scores
1 = State precludes civil liability claims against at least one safeguarded entity in abortion refusal protections (C)
0 = State does not preclude civil liability claims against any entity in abortion refusal protections (A, B)
Item: Immunity from Criminal Prosecution (Abortion)—State precludes criminal prosecution of at least one safeguarded entity in abortion procedures.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but does not protect against criminal prosecution
C = State allows conscience protections in abortion and protects against criminal prosecution
Possible Scores
1 = State precludes criminal prosecution against at least one safeguarded entity in abortion refusal protections (C)
0 = State does not preclude criminal prosecution against any entity in abortion refusal protections (A, B)
Item: Protection from Government Action (Abortion)—State limits its ability to impose repercussions (e.g., loss of license, loss of funding, action by an administrative agency or the state) on at least one safeguarded entity in abortion procedures.
Possible Codes
A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but does not protect against government action
C = State allows conscience protections in abortion for health-care providers and protects against government action
Possible Scores
1 = State precludes government action against at least one safeguarded entity in abortion refusal protections (C)
0 = State does not preclude government action against any entity in abortion refusal protections (A, B)
Safeguard: Health-Care Provision—Sterilization Refusal
(comprised of 6 items)
Item: Individual-Level Sterilization Refusal—At least some individuals (physicians, nurses, and/or hospital staff) are safeguarded in their right to refuse to participate in sterilization.
Possible Codes
A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but not for individual providers
C = State allows conscience protections in sterilization for individual health-care providers
Possible Scores
1 = State safeguards at least one group of individual health-care providers’ right of refusal from performing or participating in any part of sterilization procedures (C)
0 = State does not safeguard individual health-care providers’ right of refusal from performing or participating in sterilization procedures (A, B)
Item: Private Hospital Sterilization Refusal—Private hospitals are permitted to refuse to participate in sterilization.
Possible Code
A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but not for private hospitals
C = State allows conscience protections in sterilization for private hospitals
Possible Scores
1 = State safeguards private hospitals’ right of refusal from performing or participating in any part of sterilization procedures (C)
0 = State does not safeguard private hospitals’ right of refusal from performing or participating in any part of sterilization procedures (A, B)
Item: Public Hospital Sterilization Refusal—Public hospitals are permitted to refuse to participate in sterilization.
Possible Code
A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but not for public hospitals
C = State allows conscience protections in sterilization for public hospitals
Possible Scores
1 = State safeguards public hospitals’ right of refusal from performing or participating in any part of sterilization procedures (C)
0 = State does not safeguard public hospitals’ right of refusal from performing or participating in any part of sterilization procedures (A, B)
Item: Immunity from Civil Liability (Sterilization)—State precludes civil liability claims against at least one safeguarded entity in sterilization procedures.
Possible Codes
A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but does not preclude civil liabilities due to refusal
C = State allows conscience protections in sterilization and specifically precludes civil liabilities due to refusal
Possible Scores
1 = State precludes civil liability claims against at least one safeguarded entity in sterilization refusal protections (C)
0 = State does not preclude civil liability claims against any entity in sterilization refusal protections (A, B)
Item: Immunity from Criminal Prosecution (Sterilization)—State precludes criminal prosecution of at least one safeguarded entity in sterilization procedures.
Possible Codes
A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but does not protect against criminal prosecution
C = State allows conscience protections in sterilization for health-care providers and protects against criminal prosecution
Possible Scores
1 = State precludes criminal prosecution against at least one safeguarded entity in sterilization refusal protections (C)
0 = State does not preclude criminal prosecution against any entity in sterilization refusal protections (A, B)
Item: Protection from Government Action (Sterilization)—State limits its ability to impose repercussions on at least one safeguarded entity in sterilization procedures.
Possible Codes
A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but does not protect against government action
C = State allows conscience protections in sterilization for health-care providers and protects against government action
Possible Scores
1 = State precludes government action against at least one safeguarded entity in sterilization refusal protections (C)
0 = State does not preclude government action against any entity in sterilization refusal protections (A, B)
Safeguard: Health-Care Provision—Contraception Refusal
(comprised of six items)
Item: Individual-Level Contraception Refusal—At least some individuals (physicians, nurses, and/or hospital staff) are safeguarded in their right to refuse to participate in contraceptive procedures or the distribution of contraceptives.
Possible Code
A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but not for individual practitioners
C = State allows conscience protections in contraception for health-care providers and specifically for individual practitioners
D = State only mentions public or public grant-based family planning services in its statutes about contraceptives
Possible Scores
1 = State safeguards at least one group of individual health-care providers’ right of refusal from participating in the distribution of contraceptives (C)
0 = State does not safeguard individual health-care providers’ right of refusal from participating in the distribution of contraceptives (A, B, D)
Item: Private Hospital Contraception Refusal—Private hospitals are permitted to refuse to participate in contraceptive procedures or the distribution of contraceptives.
Possible Codes
A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but not for private hospitals
C = State allows conscience protections in contraception for health-care providers and specifically for private hospitals
D = State only mentions public or public grant-based family planning services in its statutes about contraceptives
Possible Scores
1 = State safeguards private hospitals’ right of refusal from participating in the distribution of contraceptives (C)
0 = State does not safeguard private hospitals’ right of refusal from participating in the distribution of contraceptives (A, B, D)
Item: Public Hospital Contraception Refusal—Public hospitals are permitted to refuse to participate in contraceptive procedures or the distribution of contraceptives.
Possible Code
A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but not for public hospitals
C = State allows conscience protections in contraception for health-care providers and specifically for public hospitals
D = State only mentions public or public grant-based family planning services in its statutes about contraceptives
Possible Scores
1 = State safeguards public hospitals’ right of refusal from participating in the distribution of contraceptives (C)
0 = State does not safeguard public hospitals’ right of refusal from participating in the distribution of contraceptives (A, B, D)
Item: Immunity from Civil Liability (Contraception)—State precludes civil liability claims against at least one safeguarded entity in contraceptive procedures or the distribution of contraceptives.
Possible Codes
A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but does not preclude civil liabilities due to refusal
C = State allows conscience protections in contraception and specifically precludes civil liabilities due to refusal
D = State only mentions public or public grant-based family planning services in its statutes about contraception and does not include civil liability protections
Possible Scores
1 = State precludes civil liability claims against at least one safeguarded entity in contraception refusal protections (C)
0 = State does not preclude civil liability claims against any entity in contraception refusal protections (A, B, D)
Item: Immunity from Criminal Prosecution (Contraception)—State precludes criminal prosecution of at least one safeguarded entity in contraceptive procedures or the distribution of contraceptives.
Possible Codes
A = State does not allow any conscience protections in contraception
B = State allows some conscience protections in contraception but does not protect against criminal prosecution
C = State allows conscience protections in contraception for health-care providers and protects against criminal prosecution
D = State only mentions public or public grant-based family planning services in its statutes about contraception and does not include protection against criminal prosecution
Possible Scores
1 = State precludes criminal prosecution against at least one safeguarded entity in contraception refusal protections (C)
0 = State does not preclude criminal prosecution against any entity in contraception refusal protections (A, B, D)
Item: Protection from Government Action (Contraception)—State limits its ability to impose repercussions on at least one safeguarded entity in contraceptive procedures or the distribution of contraceptives.
Possible Codes
A = State does not allow any conscience protections in contraception
B = State allows some conscience protections in contraception but does not protect against government action
C = State allows conscience protections in contraception for health-care providers and protects against government action
D = State only mentions public or public grant-based family planning services in its statutes about contraception and does not include protections against government action
Possible Scores
1 = State precludes government action against at least one safeguarded entity in contraception refusal protections (C)
0 = State does not preclude government action against any entity in contraception refusal protections (A, B, D)
