Notre Dame Law Review

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Lucia A. Silecchia*

Introduction

Because government funds to institutions and individuals finance a significant amount of medical care in the United States, the prospect of conditions or “strings” attached to that funding is an ever-present specter.  Furthermore, the fact that institutions and individuals require licenses to provide medical care also raises these possibilities as the brave new world of medicine poses far more moral dilemmas than anticipated even a brief time ago.¹

This has led many institutions and individuals to refrain from various activities, believing that to do so would constitute direct or material cooperation in an evil activity.  Their ability to avoid participation in these activities is a matter of grave and growing concern.  Likewise, the possibility of conditions imposed on individuals and institutions as a requirement for financial support or necessary licenses may threaten their ability to act in accord with their beliefs on the morality of various medical interventions. 

Much of today’s most contentious and high-profile discourse about unconstitutional conditions and coercion in the medical arena centers on issues pertaining to gender and reproduction.²  Not yet receiving as much attention is the ability of institutions and individuals to resist involvement in assisted suicide—even though this is “among the most controversial topics in the United States today.  It is such a contentious issue because it extends beyond politics, delving into matters of personal autonomy and morality.  Quite literally, it is a matter of life or death.”³  Now that assisted suicide is legal in a growing number of jurisdictions, a storm may be brewing.  Precisely because that storm is not yet as fierce here as it is in other areas, steps to ensure strong conscience protections must be taken today so that the specter of coercion does not arise tomorrow.⁴  

The broader debate on unconstitutional conditions is beyond the scope of this Article.⁵  Instead, what follows are reflections that focus on a narrow, related issue: the protection of conscience rights in the specific context of assisted suicide.⁶ Certainly, the parameters of unconstitutional conditions doctrine will be shaped by the current discussions of that doctrine in the medical contexts of abortion, reproduction, and gender.⁷  However, these brief reflections argue that, today, attention must be paid to developing robust conscience protections in the context of assisted suicide, even though it has not yet come to a head in quite the same way.

In reflecting on this question, it is vital to protect both individual providers and institutions from legal coercion.  Only by doing so today will they be able to mount vigilant defenses against future attempts to impose unconstitutional conditions in this arena.  These reflections do not propose how best to do so.  Instead, they are intended to raise questions and sound an alarm to spur further development of protections in this field.

The first Part of these reflections considers why it is critical, and not premature, to address this issue today.  The second outlines the extent to which assisted suicide is expanding its reach in state law.  The third will explain how current conscience protections in existing state statutes are disappointingly inadequate and anticipate upcoming threats.  Finally, these reflections explore what must be done to solidify protection against coercion when it comes to this most serious threat to the lives of vulnerable people.⁸

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©2023 Lucia A. Silecchia.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Professor of Law, The Catholic University of America, Columbus School of Law.  I am grateful to the editorial board of the Notre Dame Law Review and my fellow participants in the Fall 2022 Law Review Symposium for their insightful contributions to and feedback on this piece.  I also wish to acknowledge the excellent support I received from Kylee Kim and Eleni Mouskas, my student research assistants from The Columbus School of Law at The Catholic University of America.

1Kevin H. Theriot & Ken Connelly, Free to Do No Harm: Conscience Protections for Healthcare Professionals, 49 Ariz. St. L.J. 549, 551–52 (2017) (“[T]he swift pace of scientific advancement and the expansion of medical capabilities have greatly increased the chances that a growing number of medical practitioners will face a crisis of conscience sooner rather than later in carrying out their vocation.”); id. at 579 (“[M]edical advancements and scientific knowledge will likely continue to bring new and unforeseen challenges to conscience, and government involvement in healthcare will likely bring more countervailing imperatives and less accommodation.”).  For a historic overview of conscience protections in the health care arena, see generally Lynn D. Wardle, Protection of Health-Care Providers’ Rights of Conscience in American Law: Present, Past and Future, 9 Ave Maria L. Rev. 1 (2010).

2See, e.g., Kay L. Levine, Jonathan Remy Nash & Robert A. Schapiro, Protecting State Constitutional Rights from Unconstitutional Conditions, 56 U.C. Davis L. Rev. 247 (2022); Griffith v. El Paso Cnty., No. 21-CV-00387-CMA-NRN, 2023 WL 2242503, at *12 (D. Colo. Feb. 27, 2023).

3Anthony W. Joyce, Note, Prosecuting Fatal Speech: What Minnesota’s State v. Final Exit Network Means for Assisted-Suicide Laws Across the Country, 71 Okla. L. Rev. 1229, 1229 (2019).

4For excellent commentary on the assisted suicide debate in the specific context of institutions, see Zachary R. Carstens, Note, The Right to Conscience vs. The Right to Die: Physician-Assisted Suicide, Catholic Hospitals, and the Rising Threat to Institutional Free Exercise in Healthcare, 48 Pepp. L. Rev. 175 (2021).

5For in-depth analysis of unconstitutional conditions more broadly, see generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989); Lynn A. Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 Cornell L. Rev. 1185 (1990); Peter A. Clodfelter & Edward J. Sullivan, Substantive Due Process Through the Just Compensation Clause: Understanding Koontz’s “Special Application” of the Doctrine of Unconstitutional Conditions by Tracing the Doctrine’s History, 46 Urb. Law. 569 (2014); Charles R. Bogle, Note, “Unconscionable” Conditions: A Contractual Analysis of Conditions on Public Assistance Benefits, 94 Colum. L. Rev. 193 (1994); Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. Rev. 593 (1990). 

6Andrew S. Kubick, An “Oath Unviolated”: Realizing the Joy of Medicine Through the Free Exercise of Conscience, Catholic J. on Religious Freedom & Healthcare, Winter 2021–2022, at 1 (“[T]here is a pervasive assault on the rightful exercise of medical conscience that disturbs the joy of medicine and disrupts the plans of future physicians who refuse to forfeit their morals to attain their license.”); Soledad Bertelsen, Conscientious Objection of Health Care Providers: Lessons from the Experience of the United States, 3 Notre Dame J. Int’l & Comp. L. 122, 127 (2013) (“Freedom of conscience consists of the liberty to believe in principles—especially ethical ones—according to which men shape their lives.  Therefore, the right to believe necessarily needs to include a right to behave according to these beliefs.”); Theriot & Connelly, supra note 1, at 549 (“[I]t is difficult to conceive of a scenario in which the right to conscience for medical practitioners should not prevail in a conflict with some other claimed imperative, especially given its historical and philosophical pedigree.”).

7In David Busscher, Note, Linking Assisted Suicide and Abortion: Life, Death and Choice, 23 Elder L.J. 123 (2015), the author discusses the parallels in the interests at stake in abortion and assisted suicide.  See also Susan Frelich Appleton, Assisted Suicide and Reproductive Freedom: Exploring Some Connections, 76 Wash. U. L.Q. 15 (1998) (discussing similarities in debates over abortion and assisted suicide); Dorothy E. Roberts, The Only Good Poor Woman: Unconstitutional Conditions and Welfare, 72 Denv. U. L. Rev. 931 (1995) (exploring unconstitutional conditions doctrine with respect to mandated contraception as a requirement for obtaining welfare benefits); Diana Hassel, Sex and Death: Lawrence’s Liberty and Physician-Assisted Suicide, 9 U. Pa. J. Const. L. 1003 (2007) (discussing parallels between laws on physician-assisted suicide and sexual conduct); Heather Skrabak, Note, Refusing to “Play God”: Hospital Ethics Committees Can Help Navigate Religious and Moral Accommodations in Assisted Reproductive Technologies, Health Law., June 2022, at 82 (discussing conscience and religious accommodation issues in the context of reproductive technology); Kristin M. Roshelli, Note, Religiously Based Discrimination: Striking a Balance Between a Health Care Provider’s Right to Religious Freedom and a Woman’s Ability to Access Fertility Treatment Without Facing Discrimination, 83 St. John’s L. Rev. 977 (2009) (discussing religious conscience claims in the context of reproductive technology and fertility treatments for women).

8A well-curated bibliography on the question of assisted suicide may be found at Alyssa Thurston, Physician-Assisted Death: A Selected Annotated Bibliography, 111 Law Libr. J. 31 (2019).