This past weekend I attended (and delivered a paper) at the annual meeting of University Faculty for Life at Catholic University’s Columbus School of Law. My paper had to do with Justice Breyer’s concept of Active Liberty and current notions of popular constitutionalism and abortion rights,  focusing on the potential changes in the Roe/Casey framework suggested by (if not expressly called for in) Carhart v. Gonzales. But I’ll discuss that some other time.

Right now, I want to highlight a paper by Catholic’s Mark Rienzi. He argues that Casey‘s “sweet mystery” of life passage ought to create a constitutional right on the part of health care providers not to participate in abortion or to prescribe or administer what they regard to be abortifacients. But I think his argument has the potential to move beyond that and that is both its strength and its weakness.

The joint opinion in Planned Parenthood v. Casey argued that “[a]t the heart of liberty is the right to define one’s concept of existence, of the universe, and of the mystery of human life ….” There are all sorts of objections to this as a workable principle of constitutional interpretation, but Professor Rienzi takes it as a given.

Although almost every state and federal law protects health care providers from being compelled to perform abortions, he wants to argue that such protection is constitutionally mandated and suggests that the issue is salient because of developments such as Plan B contraception and proposals such as the Freedom of Choice Act.

I think the use of Casey for conscience protection is audacious and a clever way around the limitations of Employment Division v. Smith which substantially limits protection of conscience under the free exercise clause.

But isn’t it also subject to the concerns that lead to Smith, i.e., the fear of unlimited claims to be exempted from the law? Indeed, the lack of any apparent limiting principle to Casey has been one of its principle criticisms. Justice Scalia, for example, has called it the case “that ate the rule of law.”

Professor Rienzi tries to avoid that by arguing that the idea that a physician cannot be compelled to perform an abortion has a long history and strong contemporary support. (He might also have added that the fear of ensuing anarchy has not been supported by experience under the laws like the Religious Freedom Restoration Act and its state counterparts, as well as under state constitutions that provide broader free exercise protection.)

But what of claims to be exempt from laws prohibiting certain forms of discrimination? A contemporary example might be the caterer or photographer who does not wish to provide services to a wedding between members of the same sex? Certainly certain forms of discrimination also have a long history and perhaps even strong contemporary support.

Of course, another difficulty is that it requires an odd coalition on the Court. The conservatives will not wish to lend any credibility to Casey while the liberals (particularly if they buy into, as Justice Ginsburg seems to, an “equality” rationale for Roe) may not want to recognize a broad right of conscience.