Nadia Sawicki, ‘The Conscience Defense to Malpractice’

… While many scholars have examined the impact of conscience laws on patient access to medical care, there has yet been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied such care. This Article not only raises awareness of the previously-unrecognized breadth of protections established by US conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws. This Article highlights opportunities for future research on the question of whether conscience-driven health care providers should be granted legal immunity from all possible adverse consequences of their actions, or whether these protections should be balanced against state interests in ensuring that patients who are injured by provider refusals are not denied opportunities for tort recovery.

Sawicki, Nadia N, The Conscience Defense to Malpractice (February 1, 2019). California Law Review, 2020 forthcoming.

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