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Hastings Law Journal

Authors

Eleanor Barczak

Abstract

Catholic health care systems in the United States have long limited women’s access to reproductive care. Controlled by the Ethical and Religious Directives promulgated from the Church, Catholic hospitals are prohibited from performing abortions or sterilizations. In 1973, Congress codified the “Conscience Clause,” legally protecting the individual and institutional right to refuse to perform or participate in abortion or sterilization procedures based on religious or conscience objection.

This Note argues that refusal to perform a postpartum tubal ligation based on the Conscience Clause violates medical best practices. However, in the case of an individual physician, possessing a conscience and direct connection with the patient, it is a permissible violation. An institution is fundamentally unable to form the deliberative process necessary to have a conscience. Therefore, using the Directives as a blanket institutional conscience objection impermissibly violates medical best practices. Finally, this Note proposes that an institutional denial of postpartum tubal ligations may violate the standard of care and be susceptible to a legal attack.

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