James Nelson

“Freedom’s just another word for nothin’ left to lose.” So says Bobby McGee, the Montana 2023 legislative supermajority/Freedom Caucus, and the Supreme Court of the United States.

At issue are “freedom of conscience” laws. These pieces of legislation are not the product of any original thinkers in Montana’s legislature, but, rather, are grounded in cookie cutter bills started by right-wing, Christian organizations including the Religious Freedom Institute in Washington, D.C., Alliance Defending Freedom, an Arizona-based nonprofit, the Christ Medicus Foundation in Michigan, the Christian Medical Association, the Catholic Medical Association, and National Pro-Life Nurses.

Freedom of conscience laws have been adopted in Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Michigan, North Dakota, Pennsylvania, South Dakota, Texas and, in the 2023 legislative session, Montana. (My quick tally; there’s likely more).

It also bears mentioning that the United States Supreme Court has handed down decisions that have the same effect as these freedom of conscience laws (e.g., Burwell v. Hobby Lobby Stores, (protecting employers who refuse to provide employees insurance benefits that violate the business’ religious beliefs) and, most recently, 303 Creative LLC v. Elenis (legal protection for those persons and businesses who refuse provide goods or services to LGBTQIA+ persons on the basis that doing so would violate the business owner’s free speech rights).

Here’s what Montana’s Medical Ethics and Diversity Act does.  It provides: sweeping protection to health care providers who choose to refuse to prescribe certain medications (e.g., medical marijuana, birth control, or morning after pills) or to participate in various medical procedures and treatments (e.g., abortion, medical aid in dying, gender-affirming care for transgender persons, contraception and sterilization) on the basis that these violate their ethical, moral or religious beliefs; immunity from suit for medical providers, institutions and persons who assert these freedom of conscience exemptions; legal protection for insurance companies that refuse to provide coverage for treatments and procedures that violate the insurance company’s conscience (who knew they even had one?); legal protection for whistleblowers who turn in a medical provider who violates the conscience exemption law; protection for health care providers who practice medicine based on their consciences—as opposed, ostensibly, to practicing medicine on the basis of legal standards of care and on the basis of science.

Montana’s freedom of conscience law will go into effect on October 1, 2023. As discussed in an article published on August 8, 2023 in KFF Health News, written by Carly Graf, Montana’s law goes even further than the cookie-cutter version by undermining patient care, by threatening the right of people to receive life-saving and essential care, and by gutting remedies for patients who receive inadequate care.

Freedom of conscience laws are enacted to protect a minority of right-wing Christian medical providers and institutions and are, largely, grounded in their individual religious ideologies.

Unfortunately, however, these laws take away freedoms, liberties, and rights that the majority of us heretofore enjoyed. For example, under Montana’s Constitution’s Declaration of Rights at Article II, the freedom and right:  to not have someone else’s religious beliefs effectively imposed upon us by our government (Section 7); to seek safety, health and happiness in all lawful ways (Section 3); to inviolable human dignity (Section 4); to not be discriminated against on the basis of exercising our civil or political rights--and to live as equal members of society (Section 4); to individual privacy—to have an abortion, for example (Section 10); for youths to have the same rights as adults (Section 15); to courts of justice open to each of us and a speedy remedy and full legal redress afforded for every injury to person, property or character (Section 16); to due process of law (Section 17); and to unenumerated rights retained by each of us (Section 34).

Bobby McGee was right. Freedom (in the form of freedom of conscience laws benefitting the minority) is just another word for taking rights from the rest of us, the majority.

And, now, we got nothin’ left to lose.

James Nelson is a retired Montana Supreme Court justice

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