An [Un]clear Conscience Clause

By examining 20 state laws mandating insurance coverage of contraceptives, this article examines the sources and consequences of the ambiguity or the precision of the language.

Many states with legislation mandating insurance coverage of prescription contraceptives for women have conscience clause exemptions. These exemptions allow providers to opt out of the requirement based on religious or moral beliefs. This article assesses the variation among the exemptions, specifically looking at the impact of ambiguous versus precise statutory language.

The statutory language and its relationship to political or institutional fragmentation is assessed, as well as ideology. To assess the consequence of statuary language variation, the researchers assessed if the state’s conscience clause had been litigated at the appellate level.

Key Findings:

  • This research points to political disagreement and institutional fragmentation in the state legislation as more strongly correlated with ambiguity than ideology.
  • More precisely worded statutes have prompted court battles, while ambiguous and moderately ambiguous state statutes have not been litigated at the appellate level at all.
  • The specific language disadvantages an organized and highly mobilized group, like the Catholic Church, whereas ambiguous language disadvantaging a diffuse and unorganized group, like female employees.

Overall, this article indicates that the resources, incentives, and organization of affected stakeholders can heavily contextualize the impact of statutory ambiguity on court intervention. This research provides important context and findings for the implementation of the Affordable Care Act.