Women's health is increasingly undervalued in conflicts over reproductive rights, including clashes based on moral objections under so-called conscience clauses, a new study by a University of Illinois legal expert found.
Beth Burkstrand-Reid says a review of recent reproductive rights cases shows that judges may shortchange women's health when it is pitted against other legal interests, such as religious freedom, potentially leading to rulings that could put health at risk.
"Judges may understandably be reluctant to decide who wins in a battle between religious freedom, doctor's rights and women's health," she said. "As a result, they may downplay women's health as an interest, and thus fail to fully consider it in their decisions."
Burkstrand-Reid says women's health will remain at risk even if President Obama rescinds a federal conscience rule this month, as expected. Several states have their own laws on the books, she said, and others may consider legislation to fill the federal void.
"What we are seeing is a battle over whether laws should prioritize women's health or if by doing that the government is impermissibly impinging on moral or religious freedoms," she said. "I don't expect that this controversy will go away anytime soon."
Burkstrand-Reid's study, which will appear in the University of Colorado Law Review, found that some courts cite the availability of alternative reproductive health providers or services as proof that women's health will not suffer even in the face of laws that restrict reproductive health care.
That reasoning can be flawed, said Burkstrand-Reid, a visiting professor in the U. of I. College of Law who studies family and gender law.
She cited a ruling that allowed pharmacists to refuse to provide the morning-after pill under certain circumstances based on the judge's reasoning that other pharmacies in the area stocked the contraceptive, thus protecting women's health in the event of a druggist refusal.
But Burkstrand-Reid says the ruling failed to adequately consider the possibility that a woman could become pregnant because of the delay caused by a pharmacist's refusal, or that druggists at the other outlets might also refuse.