The Wisconsin State Assembly is considering a bill to require hospitals to administer emergency contraception to rape victims. Many people believe that the drug, known by the infelicitous brand name "Plan B", is considered by many to be an abortifacent because it tends to prevent a fertilized egg from implanting in the uterine wall.
The bill originally had conscience protection for individual doctors and nurses, but not for the hospital as an association. In other words, a Catholic hospital with a policy against the drug would have to administer it.
An Assembly committee adopted an amendment by Mark Gundrum that provided such protection to hospitals who adopt policies against administration of Plan B on religious or moral grounds.
For reasons that I won't get into here, I support that. But doesn't it defeat the purpose of the bill? Are there any hospitals that refuse to administer Plan B except on moral or religious grounds? It seems to me that if you don't think that it is wrong to do so, then giving the drug would be a rather obvious and simple thing to do.
This brings me back to my original reaction to the unamended bill. It seems clearly targeted at the practices of hospitals and health care providers who have religious objections to Plan B.
Does that raise constitutional concerns? Does it interfere with the right to free exercise of religion. The US Supreme Court has held that a neutral law of general applicability will usually not be unconstitutional even if has the collateral effect of interfering with someone's religion. The leading case involved Native Americans whose sacramental use of peyote violated state drug laws.
There is, however, an exception when the law was, in fact, aimed at a religious practice. But it has been often been narrowly interpreted and I think it would be a tough slog here.
The free exercise guarantee in Wisconsin's constitution has, however, been more generously interpreted by the Wisconsin Supreme Court. That,too, is New Federalism. In Wisconsin, a law that substantially burdens religious exercise must be necessary to achieve a compelling state interest. This is a tough standard but there has been surprisingly little action following the case that established it.
So ... will the legislature strip out the exemption? If it doesn't, will there be any pro-life energy against the bill? Is this the battlefield that you want to die on?
But don't the sponsors of the bill (if they are doing something other than posing for a press release) have to try to strip the amendment?
If so, will there be a constitutional challenge?