On June 18, 1973, President Nixon signed into law the Health Programs Extension Act, extending the funding of a dozen public health programs for one year. This act included a clause allowing medical personnel and hospitals receiving federal funds to refuse to provide or perform abortions or sterilizations for reasons of religious belief or moral conviction.^{Footnote 1} Voted on separately as an amendment to the proposed bill, this first federal conscience clause passed by 92–1 in the Senate and by 372–1 in the House.^{Footnote 2} By the end of 1974, twenty-eight states had passed similar conscience clauses.^{Footnote 3} Two years after its passage, a Newsweek article about the antiabortion movement’s largely unsuccessful efforts to pass legislation at the federal level wrote that “only a conscience clause measure sponsored by Idaho’s Democratic Senator Frank Church—has had far-reaching effect.”^{Footnote 4}

Opponents of conscience clauses criticize them for undermining the constitutionally protected rights of women, as well as for privileging one set of religious beliefs, while advocates champion them for limiting the state’s power to coerce individuals to do what they consider to be morally wrong.^{Footnote 5} Whatever their normative position, legal scholars, bioethicists, philosophers, and advocates on all sides typically identify the 1973 Church Amendment as significant primarily as a historical precedent for subsequent conflicts over the scope of conscience clauses. In contrast, this article considers the Church Amendment as a historical event on its own terms and analyzes the meaning and significance of the conscience clause in the context of 1973.

Drawing on the legislative record, papers of key lawmakers, press coverage, and records of organizations and individuals mobilized around this issue, this article asks three questions: Why was there such broad and bipartisan support for the Church Amendment? Why did lawmakers concerned about the conscience clause’s constitutionality and consequences for women’s health ultimately vote for it? What are the consequences of Church Amendment in terms of women’s access to abortion services and in terms of abortion politics? The history of the Church Amendment recovers a brief moment when consensus and compromise on the issue of abortion was possible. It offers a new perspective on the combination of political exigencies, legal trends, and social movements that created that possibility, and foreshadows the breakdown of that consensus and the consequences of those compromises. It also situates the debate over the conscience clause alongside contemporaneous debates about Vietnam, Watergate, the budget, abortion, women’s rights, and the role of religion in the public sphere.

In 1973, the Democratic-led Congress was consumed by escalating confrontations with the Nixon administration over Watergate, Vietnam, the relationship between executive power and legislative authority, and the budget. It was also passing laws eradicating sex discrimination, raising the complicated question of how abortion politics would intersect with this legislative effort to define and ensure women’s equality.^{Footnote 6} A set of recent Supreme Court decisions accompanied these political factors, decisions that redefined the scope of protections for religious beliefs in schools, workplaces, and the military, and provided a new framework for adjudicating tensions between private beliefs and public obligations.^{Footnote 7} Additionally, in the months following the Roe v. Wade decision, lawmakers faced escalating pressure from social movements, religious leaders, and constituents on both sides of the issue. These variables combined in complex ways to produce the unlikely alliances and compromises that resulted in the nearly unanimous votes.

Tensions between the legislative and executive branches of government intensified in the spring of 1973.^{Footnote 8} Reelected in a landslide that previous November, Nixon was deploying executive privilege to prevent White House officials from testifying in the Senate Watergate Committee’s televised hearings.^{Footnote 9} The Senate was about to cut off funds for combat in North Vietnam, South Vietnam, Laos, and Cambodia. Nixon was impounding funds that Congress had already appropriated for a variety of federal programs.^{Footnote 10} These dynamics all influenced the debate over the conscience clause.

Nixon’s second-term agenda included containing spending on domestic programs like these. One White House aide described Nixon’s proposed budget as “the opening barrage in a campaign to redirect social policy in this country.”^{Footnote 11} Time magazine described it as an effort to “bury the Great Society.”^{Footnote 12} In keeping with this goal, Nixon threatened to veto the entire health bill, which funded programs for mental health, disabilities services, family planning, hospital construction, community health centers, and medical research.^{Footnote 13}

The debate over the health bill focused on this threat. Senator Hubert Humphrey (D-Minn.) called it an example of “total irresponsibility on the part of the executive branch with respect to . . . the critical health care needs of America.”^{Footnote 14} More surprising perhaps was that some Republican senators were equally critical. Peter Dominick of Colorado, chair of the National Republican Senatorial Committee, was increasingly concerned about the impact Watergate could have on the midterm elections, and he called Nixon’s veto threat a “clear intrusion by the executive branch into the jurisdiction of Congress.”^{Footnote 15} Pennsylvania’s Richard Schweiker criticized Nixon’s “unilateral” effort to eliminate these programs, and the fact that “Congress does not appear to be a partner in this process.”^{Footnote 16} These statements reflected a frustration with Nixon’s refusal to spend nearly $4 billion that Congress had appropriated for clean water, highways, and farm programs, and his threats to impound further appropriations.^{Footnote 17} Time magazine wrote that Nixon’s “tactics have unified Congressmen of every ideology against what they consider a defiance of their constitutional power to control spending.”^{Footnote 18} As the growing Watergate scandal and the battles over spending exacerbated tensions between the executive branch and congressional Republicans, supporting this health bill offered some Republicans the opportunity to distance themselves from Nixon.

If Watergate and budget battles served as the backdrop for the debate over the Church Amendment, the foreground was the January 1973 decision in Roe v. Wade.^{Footnote 19} It was neither inevitable nor obvious that the Democratic Party would become the pro-choice party and the Republican Party would become the pro-life party.^{Footnote 20} A 1972 Gallup Poll found that while 68 percent of Republicans believed that abortion should be a decision between a woman and her doctor, only 59 percent of Democrats did.^{Footnote 21} The abortion issue had entered national electoral politics for the first time in the 1972 presidential election when, after heated internal debates, neither party included a position on abortion in their platforms.^{Footnote 22} Following the advice of his aides who wanted to attract northern Catholic voters to the Republican Party, Nixon changed his position on abortion.^{Footnote 23} Nixon rejected his own President’s Commission on Population Growth’s recommendation to legalize abortion and supported Terence Cardinal Cooke’s efforts to repeal the 1971 New York statute legalizing abortion.^{Footnote 24} Nixon also reversed his repeal of the abortion ban in military facilities and joined in on attacks on George McGovern as the candidate of “amnesty, abortion, and acid.”^{Footnote 25} This strategy paid off in November, when, for the first time, a majority of Catholic voters voted for the Republican candidate.^{Footnote 26} While the realignment and consolidation of the parties on this issue was taking shape, it was far from complete. In 1973, abortion remained an issue more capable of creating divisions within parties than between them.

Lawmakers on all sides of the issue wanted to avoid turning the vote on the conscience clause into a referendum on Roe. Frank Church and Illinois Senator Adlai Stevenson III, both of whom supported legalized abortion, at least in limited ways, and both of whom were running for reelection in 1974 in states with significant opposition to abortion, used their support for the conscience clause to distance themselves from Roe, and to make clear that their commitment to religious freedom transcended their support for abortion. As Church put it, “Nothing is more fundamental to our national birthright than freedom of religion.”^{Footnote 27} Rather than endorsing Roe, Church emphasized instead the need to work within its parameters because it “can neither be altered nor repealed by statute.”^{Footnote 28} Stevenson similarly distanced himself from the decision, expressing his personal opposition to “abortion on demand” after the first trimester and criticizing the judicial overreach of the Roe decision.”^{Footnote 29}

Occupying opposite ends of the spectrum of the Republican Party, New York senator James Buckley and Massachusetts Representative Margaret Heckler had different reasons for supporting the conscience clause in a way that did not escalate the abortion debate. Buckley, a conservative opposed to legalized abortion, praised Church’s “most important and timely” amendment.^{Footnote 30} Buckley welcomed the opportunity to demonstrate his ability to work with opponents and to lay the groundwork for more expansive antiabortion legislation. For Heckler, a strong supporter of the ERA and of funding for childcare, abortion was a tricky issue. After interviewing Heckler, NARAL’s Constitutional Defense Project wrote a report noting that “she does not support any of the CA’s [constitutional amendments]” but that she identified the “conscience clause . . . as being the type of legislation she would support.” The report went on to say: “The right-to-lifers are not pleased by her lack of support. . . . Heckler is concerned about Fall River, a major urban center in her district which she views as heavily Roman Catholic and conservative. She claims she is receiving a great deal of pressure from this quarter against abortion. She cannot become an advocate for pro-abortion but is on record as opposing r-t-l [right-to-life] amendments.”^{Footnote 31} Heckler wanted to avoid alienating her feminist allies and to show her concern for the values of her antiabortion constituents.

For this brief moment in 1973, both pro-life and pro-choice legislators saw the conscience clause as a way to find common ground rather than as a way to exaggerate political differences. Congressional Quarterly Weekly Report commented that “the 93rd Congress has openly argued abortion only when abortion opponents have brought up related proposals which could not be sidestepped on the floor,” and that the Church Amendment succeeded because it “was not presented as a strict test of anti-abortion sentiment.”^{Footnote 32} Commonweal, the oldest and largest lay Catholic journal, assessed the “broad ideological spectrum” of support for the Church Amendment this way: “Some are attracted by the basic anti-abortion features of the resolution, but some also see it safeguarding religious freedom and civil rights and perhaps heading off efforts in the direction of a Constitutional amendment, a move which many on both sides of the abortion issue fear would protract divisiveness over abortion in state after state over many years.”^{Footnote 33} This consensus was short-lived. The same day that the House voted on the conscience clause, Buckley sponsored his Human Life Amendment, which would have, if passed, overturned Roe.^{Footnote 34} Over the next six months, Congress debated more than two-dozen proposed constitutional amendments that would overturn the decision.^{Footnote 35}

This tenuous common ground reflected the personal beliefs and strategic choices of particular legislators, but it also illuminates a transitional moment in relationship between religion and party politics. In 1970, more than 75 percent of Catholics identified as Democrats; in 2010, only 48 percent did.^{Footnote 36} And in 1973, there was no guarantee that Nixon’s new conservative coalition of Catholics and the white working class would hold. Democrats remained committed to representing their Catholic constituents, as well as, at least in the case of Frank Church, their own Catholic beliefs.

Church’s commitment to this issue was triggered not only by the recent Roe decision, but a case closer to his home. Gloria Taylor was scheduled to have her second child delivered by a caesarean section, and she wanted to schedule a tubal ligation at the same time. When St. Vincent’s Hospital in Billings, Montana, denied her request, the Montana District Court issued an injunction requiring the hospital to perform the procedure.^{Footnote 37} When he introduced his amendment, Church, a practicing Catholic, described the outcry in his state to the injunction. “There is,” Church said, “open conjecture in the press that obstetrics divisions of Catholic hospitals might be closed [rather] than perform operations contrary to their religious beliefs.”^{Footnote 38} He emphasized that the U.S. Conference of Catholic Bishops supported his amendment.

The national, religious, and legal press had followed this case. The Washington Post described the ruling as producing “nightmares in Catholic hospitals across the country.”^{Footnote 39} The Priest concluded that “only two alternatives are open to the Catholic hospital: civil disobedience from all court orders and the jailing of Catholic administrative officials . . . or closing their doors.”^{Footnote 40} Special Counsel to the New Jersey Catholic Hospital Association published an article in Catholic Lawyer entitled “Compelling Hospitals to Provide Abortion Services,” decrying the decision and supporting the Church Amendment as a potential solution.^{Footnote 41}

Church received letters from constituents supporting his proposal, but he also received letters from those opposing it—either because they felt it went too far or because they felt it did not go far enough. The president of Planned Parenthood Association of Idaho described his concern that “in certain areas [abortion and sterilization] services will as a result be made unavailable, and thus as a practical matter, the right to obtain an abortion will be invalidated.”^{Footnote 42} In contrast, a constituent wrote that Church’s amendment was “just pacification and no answer to the disgrace the Supreme Court has brought upon this country.”^{Footnote 43} Church surely took comfort from the letters he received from Bishop Sylvester William Treinen of Boise, who wrote to praise Church’s “excellent piece of legislation,” and from Humberto Cardinal Medeiros, Archbishop of Boston. “You presented with great clarity and cogency to your Colleagues the facts and great dangers that exist,” Medeiros wrote. “I was delighted that your Resolution was adopted by such a large majority and with only one dissenting vote.”^{Footnote 44}

Church faced pressure on this issue from his Mormon constituents as well, complicating the assumption that Catholics were the only religious constituency to whom abortion mattered. While 20 percent of Idaho was Catholic, approximately 25 percent was Mormon. Church acknowledged this when he said “this is not simply a Catholic issue. . . . In my own State, for example, there are hospitals affiliated with the Mormon Church, the Church of Jesus Christ of Latter-Day Saints. The position of that Church is similar to the position of the Catholic Church.”^{Footnote 45} His effort to tie together the interests of these two religions reflected a larger effort by advocates of the conscience clause, and of the Catholic Church, to frame it as an issue of religious freedom in general, rather than of Catholic interests in particular. For example, the executive director of the Connecticut Catholic Conference encouraged Representative Ella Grasso (D-Conn.) to vote for the Church Amendment, but also to “make it clear that these bills should not be interpreted as ‘doing any great favors’ for Catholics. The protection from compulsion to perform abortions or sterilizations is just as necessary and desired by non-Catholic institutions and personnel as by Catholics.”^{Footnote 46}

While the Catholic Church did not want to be seen as the only group interested in the conscience clause, it certainly was the most committed to convincing Congress to pass it and ensuring that hospitals would comply with it. The National Conference of Catholic Bishops (NCCB) published a revised version of the Ethical and Religious Directives for Catholic Health Care Services in 1971, following concerns expressed by the Catholic Health Association, that “the [d]irectives relating to direct sterilizations and the distribution of contraceptives in Catholic hospitals [were beginning] to be interpreted more liberally in certain dioceses.”^{Footnote 47} Following the Montana decision, Roe v. Wade, and the passage of the Church Amendment, NCCB president John Cardinal Krol of Philadelphia encouraged greater enforcement of these directives, pointing out that the Church “might have a difficult time using the federal conscience clause allowing hospitals to prohibit abortions and sterilizations to accord with ‘religious teaching’ unless they were on record as prohibiting such procedures.”^{Footnote 48}

The complexity of implementing the conscience clause emerged in an exchange between Senator Russell B. Long (D-La.) and Frank Church in the Senate debate, and in a pamphlet published by the Bishops of Connecticut entitled “Your Conscience and Abortion.” Long asked Church to clarify whether his amendment meant that it would be possible to go to a hospital seeking a sterilization or abortion, only to find that “it could not be performed because there might be a nurse or an attendant somewhere in the hospital who objected to it.” Did the conscience clause mean, Long asked, that “someone who happened to be working in a hospital, and was not involved in an abortion or a sterilization procedure, could veto the rights of a physician and the rights of patients to have a procedure which the Supreme Court has upheld?”^{Footnote 49} Church assured Long that the amendment would not protect a “frivolous objection from someone unconnected with the procedure,” but would only mean that “one who was involved in performing the operation or in assisting to perform the operation could not be required to participate when he or she held convictions against that type of procedure.”^{Footnote 50}

The bishops’ pamphlet addressed a similar question, differentiating between what they called “principal agents” and “secondary agents.” Performing an abortion is, the pamphlet read, “always morally wrong and therefore not permitted” for principal agents such as doctors and midwives. For secondary agents such as nurses and technicians, materially aiding the principal agent through “making the incision, providing anesthesia” was also “always morally wrong and therefore not permitted.” More complicated was the status of “secondary agents” cooperating indirectly. In these cases, the bishops said, cooperating was allowed only when “the manner of your cooperation is not an evil act in itself (wheeling of a cart, preparing a solution, making a bed, taking a blood sample, typing a medical chart, recording an admission, etc.)” or if “the reason for your cooperation is sufficiently important (other similar forms of employment are not available; the employment is necessary to support a family; or you are a member of the board in a hospital and you can accomplish good through continuing service.)”^{Footnote 51} On the one hand, these directions seemed to support Church’s assurances to Long that the conscience clause would only include direct participants in the procedures. On the other hand, it left a great deal up to the discretion of the individuals requesting exemptions and the institution granting them.

In addition to pressures from the Catholic Church, recent Supreme Court decisions shaped the way religion functioned in the conscience clause debate. In Sherbert v. Verner (1963), the court found laws requiring Seventh-Day Adventists to work on Saturdays unconstitutional, and in Wisconsin v. Yoder (1972), it found laws requiring Amish children to attend public schools unconstitutional.^{Footnote 52} Senator Ted Kennedy explicitly linked the Church Amendment to these recent decisions, arguing that the conscience clause was yet another expression of the deeply held American value of religious freedom. Democrats, perhaps eager to push back against the sense that the Warren Court (which Nixon had worked hard to conflate with the Democratic Party) had undermined religion in its recent decisions against school prayer, as well as the backlash to the recent contentious House vote on a constitutional amendment that would allow nondenominational prayer in public buildings, could use their support for the conscience clause as an opportunity to speak up for religion.^{Footnote 53}

Accompanying the Court’s expanded protections for religious beliefs in Sherbert and Yoder was an increased recognition of exemptions based on morality rather than theology. This phenomenon was most explicitly articulated in two cases involving conscientious objection. Section 6(J) of the Universal Military Training and Service Act exempted from compulsory military service “any person who, by reason of religious training and belief, is conscientiously opposed to participating to war in any form.”^{Footnote 54} In United States v. Seeger (1965), the court reinterpreted that section, determining that “the test of belief . . . is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”^{Footnote 55} In Welsh v. U.S. (1970), the Court held that “essentially political, sociological or philosophical views, or a merely personal code” could be held so firmly as to be “religious” in the eyes of the law,” and that the military exemption should include “all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”^{Footnote 56} Emphasizing the sincerity and deeply held character of the objector’s beliefs, rather than the theological foundation for them, significantly expanded eligibility for conscientious objector status.

Building on this reasoning, Stevenson proposed expanding the Church Amendment to protect those whose opposition to abortion was based on “moral convictions.” He argued that “others for moral reasons, not necessarily for any religious beliefs, can feel equally as strong about human life . . . our moral convictions as well as our religious beliefs, warrant protection from this intrusion from the government.”^{Footnote 57} Senator Buckley cheered this addition. “This is not,” he said, “a matter of concern to any one religious body to the exclusion of all others or even to men who believe in a God to the exclusion of all others.”^{Footnote 58} Buckley explicitly linked the politics of abortion, the politics of religion, and the politics of Vietnam: “This is a Nation which has always been concerned with the right of conscience. It is the right of conscience, which is protected in our draft laws. It is the right of conscience which the Supreme Court has quite properly expanded not only to embrace those young men who, because of the tenets of a particular faith, believe they cannot kill another man, but also those who because of their own deepest moral convictions are so persuaded.”^{Footnote 59} Including moral convictions would greatly expand the number of individuals and hospitals that could refuse to provide abortions and sterilizations.

The Vietnam War inflected the debate over abortion and the conscience clause in other ways as well. Many antiabortion constituents drew an analogy between the war and abortion in their letters. One woman wrote to Representative Bella Abzug (D-N.Y.): “You are against the taking of innocent life in Vietnam, but you don’t see anything wrong with taking innocent life in the United States. If war is wrong, so is abortion, capital punishment, and any type of killing. You’re inconsistent in your reverence for life; and yes, people who are against abortion do have the right to prevent other people from murdering innocent fetuses—just as you had not only the right, but the duty, to try to stop the killing in Vietnam.”^{Footnote 60} Church received a similar letter from a man who wrote: “After the hell you raised about the killing in Vietnam, surely you can do better than S.J. Res. 64 [Church Amendment]. They kill more innocent children in one year with abortion than we had killed in all the years we were in Vietnam.”^{Footnote 61}

These letters, along with debates about conscientious objection, amnesty, and tax resistance, illustrate the powerful ways that the politics of Vietnam intersected with the politics of abortion. At the same time Buckley was championing the Welsh decision and the Church Amendment, he was attacking amnesty for draft resisters as “morally objectionable.”^{Footnote 62} Although this may seem contradictory, protecting the conscience of abortion opponents and not the conscience of draft resisters reflected Buckley’s strong beliefs, as well as a certain political logic—Pat Buchanan’s “Assault Book” for the 1972 presidential election listed amnesty second only to abortion and contraceptives on his list of “Social Issues: Catholic/Ethnic concerns.”^{Footnote 63} This contradiction emerges from the other direction as well. Bella Abzug, one of the most vocal opponents of the conscience clause, was also one of the biggest champions of an unconditional amnesty bill for Vietnam draft resisters.^{Footnote 64} The ACLU struggled with a related contradiction as it debated whether to support conscientious objection to paying war taxes, a policy that, according to the minutes of the Church–State Committee, “most members of the Committee tended to agree with.”^{Footnote 65} But Judy Mears, the director of the ACLU’s Reproductive Freedom Project, warned the Church-State Committee that her office was fielding inquiries from individuals who wanted to “conscientiously choose not to pay taxes which fund abortions” and that an ACLU approval of conscientious objection to the payment of war taxes “could fuel fires that the Reproductive Freedom Project is trying to quench.”^{Footnote 66} Recognizing this problem, the committee decided to treat conscientious objection to the payment of war taxes as part of a “well-established legal precedent to conscientious objection to war.”^{Footnote 67} This narrow policy meant that it would not support conscientious objection to paying taxes that supported publicly funded hospitals and clinics that performed abortion. While the ACLU resolved the issue internally in a way that made sense to its organization, the debate—along with Buckley’s and Abzug’s opposite positions on the issues of amnesty and the conscience clause—indicates that assessing the legitimacy of claims of conscience was always a deeply political project.

In addition to being short-lived, the consensus on the Church Amendment was also not entirely consensual. Two individuals voted against it—Senator William Fulbright (D-Ark.) and Representative Phil Crane (R-Ill.). Neither spoke during the debate, making it difficult to know the reasons for their opposition.^{Footnote 68} But we do have the words of Abzug, who, despite her opposition to it, voted for the conscience clause. Examining why Abzug voted for something she thought was both unconstitutional and dangerous illustrates the complicated factors that influenced how feminist politicians, social activists, and litigators responded to the impact of legalized abortion.

In 1972 and 1973, Congress had passed, with bipartisan support, a wide range of laws prohibiting sex discrimination.^{Footnote 69} These laws included legislation that provided for the enlistment and commissioning of women in the Coast Guard Reserve; prohibited sex discrimination in the Small Business Administration and in the Comprehensive Manpower Act’s job-training programs; extended to domestic workers the minimum-wage provisions of the Fair Labor Standards Act; and prohibited sex discrimination in federally funded educational programming.^{Footnote 70} The Equal Rights Amendment also had bipartisan support. The House had approved the ERA by a bipartisan vote of 354–24 in 1971, and the Senate approved it by a bipartisan vote of 84–8 in 1972. Both the Republican and Democratic Party platforms of 1972 supported the ERA.^{Footnote 71}

Abzug was one of the strongest advocates for these causes, as well as for the legalization of abortion, and she was also one of the strongest opponents of the conscience clause. In a letter to her colleagues, she wrote that letting “federally-assisted hospitals bar patients and doctors who desire to employ their facilities for surgical procedures which are protected by the Constitution is neither sound nor legal,” and encouraged them to “reject any language which would purport to permit federally-funded hospitals to prohibit the use of their facilities for abortion and sterilization procedures.”^{Footnote 72} To her constituents, she wrote: “Clearly, no woman should be forced to have an abortion if her conscience forbids it, but no woman should be prevented from having an abortion because the conscience of some other individual would be offended by it.”^{Footnote 73}

In the House debate, Abzug outlined four constitutional objections. She began with a strong defense of the right to abortions and sterilizations and argued that the amendment “would violate the rights of individual citizens to have abortions or sterilizations and the rights of physicians and other health care personnel to perform such procedures.”^{Footnote 74} She compared allowing federally funded hospitals to opt out of providing abortions to allowing federally funded hospitals to opt out of complying with civil rights laws. The latter practice had been found to be unconstitutional in two recent district court cases holding that hospitals receiving Hill-Burton funds could not deny admitting privileges to African American physicians or deny services to African American patients.^{Footnote 75} Abzug argued that these decisions finding that “racial discrimination by an institution receiving Federal health funds was unconstitutional” offered a clear analogy for the constitutional problems with the conscience clause.^{Footnote 76}

Abzug also argued that the Church Amendment privileged one set of religious beliefs over others, and would “violate the establishment clause of the first amendment.”^{Footnote 77} Here, Abzug implicitly challenged the claims that the conscience clause was not narrowly constructed to protect Catholic interests and beliefs, but was broadly constructed to protect a wide range of religious and moral beliefs. She argued that protecting only the religious beliefs of those opposed to abortion undermined the religious beliefs of individuals whose religious or moral beliefs led them to support it, as well as religious organizations such as the Union for Reform Judaism, the Southern Baptist Convention, the National Association of Evangelicals, and the United Methodist Church, which publicly supported liberalized abortion laws.^{Footnote 78}

Abzug’s most passionately argued point was that the Church Amendment would “discriminate against persons of lesser means.”^{Footnote 79} She argued that “the clearest example of this is that a woman who desires an abortion but whose local hospital—and institution receiving Federal funds—refuses to perform such operations. Unless she can afford to go to another hospital, perhaps hundreds of miles distant, her constitutional right will be rendered utterly meaningless.”^{Footnote 80} Abortion rights groups similarly emphasized the discriminatory impact this clause would have on poor women. The Religious Coalition for Abortion Rights wrote that “such a provision would then discriminate against those women in the community who could not afford to travel elsewhere to obtain the desired service.”^{Footnote 81} The American Civil Liberties Union’s Women’s Rights Project, Planned Parenthood, and the National Association for the Repeal of Abortion Laws (NARAL) all issued public statements opposing the Church Amendment.^{Footnote 82} The YWCA, the American Association for University Women, the National Council for Jewish Women, and Catholics for a Free Choice all wrote letters to Bella Abzug and other representatives articulating their support for abortion rights and opposition to the amendment.^{Footnote 83}

While Abzug opposed the conscience clause, she also was a co-sponsor of the Health Programs Extension Act to which it was attached. Caught between her beliefs and political exigencies, Abzug might have decided that voting for the conscience clause was a compromise that might gain support for pending legislation on women’s rights. A letter from Robert Drinan (D-Mass.), a Jesuit priest and a strong supporter of women’s rights and legalized abortion supports that interpretation.^{Footnote 84} Pamela Lowry, a member of NARAL and its Constitutional Defense Project in Massachusetts, had written to Drinan about her opposition to the conscience clause. Drinan responded that he had been in communication with various national organizations “who think correctly on the issue” and who “were not enthusiastic about having this language in these bills.”^{Footnote 85} Nonetheless, he wrote, they “felt that a floor fight to excise this relatively harmless language might result in the adoption of disastrous language which could have catastrophic effects upon sound medical practices and upon the rights of women patients.”^{Footnote 86} In Drinan’s assessment, fighting this amendment was a losing battle that could have consequences for the larger struggle to protect abortion rights.

Abzug weighed these political concerns against competing advice from legal experts. Her legislative assistant Eric Hirschhorn sought advice from Thomas I. Emerson, a leading constitutional scholar who had successfully argued the Griswold v. Connecticut decision before the Supreme Court and who felt strongly that the conscience clause was unconstitutional. “Insofar as strategy is concerned,” Hirschhorn wrote in a memo, “[Emerson] believes that in deciding the constitutionality of a statute, courts look to whether there was clear controversy over it when it was enacted. The more controversy, the more likely a finding of unconstitutionality. Accordingly, his inclination is to fight every step.”^{Footnote 87} Abzug’s vote suggests that she was more persuaded by Drinan than Emerson, concluding that opposing the conscience clause might have the too-high price of alienating legislators who opposed abortion but supported other pending legislation on women’s rights.

Abzug was deeply invested in antisex discrimination legislation pending on a wide range of issues, including equal access to credit and Social Security benefits.^{Footnote 88} Some of Abzug’s partners in these efforts did not share her commitment to abortion rights in general or her opposition to the conscience clause in particular. A New York Times article on the fight for equal credit included a quote from “one feminist” who described the credit issue as “a nice clean issue, not abortion.”^{Footnote 89} Abzug’s files contain a letter from a woman asking, “How do the other women in Congress stand on the abortion issue? . . . It would really be great if all of you would present a united front.” At the bottom on that letter, Abzug wrote, “Unfortunately not all the women members of Congress feel as I do about this issue.”^{Footnote 90} Some of Abzug’s allies in the fight for a wide range of women’s rights legislation, including Margaret Heckler and Ella Grasso, also opposed legalized abortion. Abzug may have calculated that the conscience clause, which was going to pass with or without her vote, was not worth the political capital she would expend. Jane Pierson, who was at the time the executive director of the National Women’s Political Caucus, said that “political expediency” probably drove Abzug’s decision and that “despite the contrary portrayals of her, Bella was very pragmatic.”^{Footnote 91}

On the Senate side, New York Republican Jacob Javits shared Abzug’s concerns, beginning with the issue of how the amendment would impact women’s access to abortion. “Suppose, he asked, “we have an area in which practically no services of this kind are available yet we have the amendment which Senator Church has proposed . . . if she cannot get that service practically, is she not being denied a right under the 14th amendment?”^{Footnote 92} Frank Church responded to Javits’s concern by saying that the Idaho Hospital Association had assured him that “no area of Idaho would be without a hospital within a reasonable commuting distance which would perform abortion or sterilization procedures.”^{Footnote 93} Javits’s ultimate support for the amendment suggests that he accepted these assurances.

Javits also raised questions about the fact that the clause protected institutions, along with individuals. “The question,” he asked, “is whether that institution can have a religious view, as this proposed amendment says. . . . Can an institution or group have a religious scruple?”^{Footnote 94} Kennedy acknowledged the complexity of the issue and cited the recent Supreme Court decision in New York Times v. United States (1971) as a relevant comparison. “We know that in the recent Pentagon papers case, for example, the freedom-of-speech protection was applied not only to the individuals as members of the press, but also to institutions of the press,” Kennedy said. “Thus, are there strong precedents in the first amendment area for organizations and institutions to avail themselves of its protections in their own right.”^{Footnote 95} Kennedy also argued that the institutional exemption was an expression of legitimate congressional authority, arguing that “Congress has broad leeway to define what is necessary and proper for the protection of first amendment rights of individuals. . . . In order to give full protection to the religious freedom of physicians and others, it is necessary to extend the exemption in the pending amendment to the facilities in which they practice their profession and livelihood.”^{Footnote 96}

NARAL and the ACLU were extremely concerned about the institutional protection. Lawrence Lader, founder and chairman of NARAL, asked members to “flood [their representatives] with telegrams and phone calls” demanding that “exemption for hospitals on religious and moral grounds must be limited to religious institutions whose opposition to abortion has always been fundamental to that religion.”^{Footnote 97} Otherwise, he wrote, “hospitals could refuse abortion on the moral position of one administrator or official.” Associate Director of the ACLU Hope Eastman wrote to Representative Paul Rogers, who was chairing the Public Health and Environment Subcommittee of the Interstate and Foreign Commerce Committee, which was holding hearings on the bill. The ACLU recognized “a need to protect individual doctors and other health care personnel whose individual religious or moral objections make it impossible to participate in these procedures from being compelled to do so,” Eastman wrote. But, she continued, “the Constitution leaves no room for the Congress to give public funds to institutions which refuse on religious grounds to perform operations which the Supreme Court has held fundamental rights which can only be restricted under certain circumstances.”^{Footnote 98} The ACLU’s Women’s Rights Project put it this way:

Despite these efforts, the institutional exemption remained in the final Church Amendment.

Javits had a final concern that he insisted the Senate address. He argued that many doctors believed that providing abortions was a moral obligation and worried that the conscience clause did not protect their rights to act upon those beliefs. He spoke at great length about his concern that the conscience clause only protected the consciences of those opposed to abortion and didn’t protect those whose “religious beliefs may encourage their utilization.”^{Footnote 100} He proposed revising the amendment to include protections for health-care providers who wanted to provide abortions or sterilizations. With no opposition and little debate, a clause prohibiting discrimination “in the employment, promotion, or termination of employment of any physician or other health care personnel, or discrimination in the extension of staff or other privileges to any physician or other health care personnel, because he performed or assisted in the performance of a lawful sterilization procedure or abortion” was added to the Church Amendment.^{Footnote 101} The Journal of the American Medical Association editorial supporting the Church Amendment specifically praised this addition, concluding that “with the benefit of the Health Programs Extension Act of 1973, it seems that those with particular religious beliefs may follow them without infringement; but on the other hand, those who believe different may act within the confines of the broader constitutional dictates of the Supreme Court decisions.”^{Footnote 102}

Even if Javits’s concerns were sufficiently ameliorated for him to vote for the amendment, his insistence on revising the amendment to include protections for a range of beliefs is a reminder that there were alternative ways of conceptualizing acts of conscience. Javits had argued that some doctors who saw providing abortions not only as part of their medical duties but also as acts of conscience, and that regulations and laws that restricted them from doing so impinged on their rights and beliefs.^{Footnote 103} One woman wrote a letter to Abzug making a related argument about the one-sided perspective on conscience expressed in the Church Amendment: “I am deeply distressed over the ‘freedom of conscience’ legislation,” she wrote. “I consider it ‘sinful’ for a doctor or hospital to refuse to perform an abortion when a woman requests it. When tax money is given to support such a hospital or pay such a doctor, I become party, as a tax-payer, to such ‘sin,’ and I feel my conscience in this matter deserves as much consideration as that of the doctor or the hospital.”^{Footnote 104}

Some religious leaders approached the issue from a theological perspective. Howard Moody, the liberal Protestant New York minister who in 1967 had set up a network of clergy members to help women seeking abortions, argued that the absence of safe and legal abortions would restrict women’s “freedom of choice and right of conscience.”^{Footnote 105} In a Christianity and Crisis article, he wrote that antiabortion groups “unwilling to engage in a serious dialogue on the important question of where freedom of choice and conscience end in society, and whether any one group may impose its moral and religious beliefs by legal sanctions upon all society.” A law forcing a woman to terminate her pregnancy or to be sterilized against her will would, he argued, violate “the freedom of religious practice and the rights of individual conscience,” but so would a law that prevented her from doing so. “The principle of religious liberty, which grants all persons the freedom to follow the dictates of their consciences,” Moody wrote, “touches the abortion issue precisely at the point of a woman’s freedom to follow her conviction that an abortion is morally permissible for her even though to her co-religionists it is a sin.”^{Footnote 106} Catholics for a Free Choice made the similar argument that “as Catholics, no matter what our personal views are on abortion and contraception, we believe that we cannot in free conscience impose those views on other persons whose beliefs may differ from ours.”^{Footnote 107}

Some legal advocates also thought about how to best protect the conscience of pregnant women—both those who did and those who did not want to have abortion. Ruth Bader Ginsburg, then at the ACLU’s Women’s Rights Project, made that argument in her brief in the case of Struck v. Secretary of Defense.^{Footnote 108} In 1970, Air Force regulations required women who became pregnant while servicing to either have an abortion or leave the Air Force. When Captain Susan Struck, a Catholic, became pregnant in 1970, she wanted to put the child up for adoption, and use only her accumulated medical leave time for her pregnancy and delivery. The Air Force denied her request, and Struck sued. Before the Supreme Court heard the case, the Air Force waived Struck’s discharge and changed its policy, but as Neil Siegel and Reva Siegel have shown, Ginsburg’s brief included the argument that the “regulation operates with particularly brutal force against women of [Roman Catholic] faith” and “pit[s] [Struck’s] Air Force career against her religious conscience.”^{Footnote 109} Like Moody, Ginsburg argued that a woman’s conscience could lead her to either terminate or complete a pregnancy, and that the pregnant woman must have the right to make that choice.

Jimmey Kimmey, the executive director of the Association for the Study of Abortion, an organization founded by obstetricians and abortion rights advocates Alan F. Guttmacher and Robert E. Hall, agreed that “choice” and “conscience” were linked in complicated ways. In her 1972 memo entitled “Education Campaign re: abortion rights,” Kimmey discussed the “need to find a phrase to counter the Right to Life” slogan. She weighed the relative merits of two possibilities—the “Right to Choose” and “Freedom of Conscience.” Ultimately, she argued that the “Right to Choose” was a better slogan for two reasons. “Right to Life is short, catchy, and is composed of monosyllabic words,” she wrote. “We need something comparable. Right to Choose would seem to do the job.” She also had a more complicated additional reason for preferring “right to choose” as a slogan. “Conscience,” she wrote, is “an internal matter while choice has to do with action—and it is action we are concerned with.”^{Footnote 110} The arguments that conscience might lead a physician to want to perform an abortion, or a taxpayer to want to pay for one, or a clergyman or practicing Catholic to support the right to one, or a woman to obtain one or not to obtain one were all made in the spring of 1973. They were, however, obscured by the Church Amendment’s implication that only those whose consciences opposed abortion required legislative protection.

The afterlife of the Church Amendment illustrates how quickly Abzug’s and Javits’s concerns about its impact on poor women were realized. In December 1973, Buckley proposed amending the Social Security Amendments of 1973 so that “none of the funds under title 19 [Medicaid] may be used for the performance of abortions.”^{Footnote 111} In a lengthy memo to the Committee on Labor and Public Welfare, Javits explained his objections to this proposal. He began defending Medicaid as “vital to the health and well-being of economically disadvantaged individuals and their families, and then also attacked Buckley’s proposal as discriminatory: “It deprives women too poor to pay of the rights which the Constitution and the Supreme Court accord to women with means. Also, this amendment eliminates all decision-making and exercise of choice on the part of women who are poor, thereby infringing upon their civil rights and personal freedom . . . the amendment would constitute a legal impediment to equal protection for a class of women who must look to the federal and state governments for their health care.”^{Footnote 112}

NARAL echoed this concern, arguing that “this denial of Medicaid funds strikes mainly at one group, the indigent.”^{Footnote 113} Robin Elliot of Planned Parenthood wrote a memo to Harriet Pilpel of the ACLU in December 1973 detailing the antiabortion efforts in the 93rd Congress, and identifying for special attention “measures that seek to reduce the availability of legal abortion with special impact on the poor in the U.S. and overseas,” including the conscience clauses attached to a variety of bills. The memo emphasized that the proposed measures “will not affect substantially the availability of abortion services for those who can afford to pay for their own medical care, and to travel some moderate distance to a medical facility which does provide abortion services. The impact of the amendments and pending proposals is to restrict partially or perhaps totally the availability of abortion services to the poor in the United States.”^{Footnote 114} Even though Buckley’s proposal died in committee, it anticipated the key strategic realization that the most efficacious way to limit the scope and availability of abortion would be to attach riders on legislation that would restrict the use of federal funds for abortion services.^{Footnote 115}

In July 1974, Congress passed the Legal Services Corporation Act, which created an agency responsible for providing lawyers for the poor and for regulatory oversight of Legal Aid, and included a prohibition on using funds to: “provide legal assistance with respect to any proceeding or litigation which seeks to procure a nontherapeutic abortion or to compel any individual or institution to perform an abortion or assist in the performance of an abortion, or provide facilities for the performance of an abortion, contrary to the religious beliefs or moral convictions of such individual or institution.”^{Footnote 116} Whereas the Church Amendment had allowed hospitals receiving federal funds to opt out of providing abortions, the clause attached to the Legal Services Corporation Act, while presented as being entirely similar to that first conscience clause, went one step further—forbidding the use of federal funds for abortion litigation. Legal services lawyers had led efforts to force public hospitals to provide abortions. Brenda Feigen Fasteau of the ACLU characterized the Legal Services Bill as another example of “religious groups determined to stamp their will on the rest of the country.”^{Footnote 117} Bella Abzug exhorted her colleagues to vote against this ban:

In a letter to her constituents, Abzug described her belief that “it is unconscionable, in my opinion, to impose limitations on the right to counsel for those who are poor while those who can afford fees have these services available to them.”^{Footnote 119}

While this restriction incensed some abortion rights advocates, some Catholics felt it was inadequate. Connecticut Citizens for Human Life issued a statement condemning it. “Thanks to Senator Javits and others,” the memo read, “the amendment has been emasculated by permitting suits for therapeutic abortions . . . in short, abortion on demand for any reason.”^{Footnote 120} Their members were told to write to Nixon demanding he veto the bill: “Ask him to read the amendment supposedly restricting abortion-related activities and point out that it does not restrict anything. Tell him you object to the pro-abortionists forcing their moral determinations on you by making you pay for what will surely become a massively subsidized legal attack on all resistance to abortion.”^{Footnote 121} The effort to limit the availability of abortions to poor women was fully realized, of course, in 1976, with the passage of the Hyde Amendment, which excluded abortion from the comprehensive health-care services provided to low-income people though Medicaid.^{Footnote 122}

As the federal government continued to expand the scope of the Church Amendment, states implemented their own conscience clauses. On July 18, 1973, exactly one month after Nixon signed the Health Programs Extension Act into law, the ACLU and NARAL issued a joint memo detailing their pending lawsuits in nine states against hospitals—including public, private, religious, and nondenominational hospitals—that refused to provide abortion services.^{Footnote 123} Leading the WRP’s fight against the expansion of protections for “institutional conscience,” Brenda Feigen Fasteau argued that since all hospitals received local, state, and federal funds, and employed and served individuals who not Catholic, “there is no such a thing as a ‘Catholic’ hospital.”^{Footnote 124}

These cases met with mixed results. In cases involving nonsectarian hospitals in Minnesota and New Jersey and South Carolina, courts determined that receiving federal funds was sufficient to make a hospital a state actor, and, as such, those hospitals could not refuse to perform elective abortions or voluntary sterilizations.^{Footnote 125} In contrast, the 9th Circuit issued three separate decisions upholding the rights of denominational hospitals to refuse to perform abortions or voluntary sterilizations.^{Footnote 126} As historian Rebecca Kluchin says in her assessment of these cases, “When women’s reproductive rights were pitted against hospitals’ and individuals’ religious freedom, women lost.”^{Footnote 127}

In the more than forty years since the passage of the Church Amendment, almost all of the concerns expressed by legislators and activists have been realized.^{Footnote 128} In recent years, expanded conscience clauses at the state level have triggered conflicts about whether pharmacists should be required to sell emergency contraceptives; whether nurses should be required to provide after-care for patients who have had abortions; whether bus drivers should be required to transport women to a women’s health clinic that provides abortions; or whether custodians should be required to clean laboratories involved in stem-cell research.^{Footnote 129} Conscience clauses have expanded at the federal level as well. The Coats Amendment to the 1996 Omnibus Consolidated Rescissions and Appropriations Act prohibited “abortion-related discrimination in governmental activities regarding training and licensing of physicians,” thus allowing medical students and residents and federal-funded postgraduate physician training programs “to refuse to participate in those activities.”^{Footnote 130} One year later, the Balanced Budget Act of 1997 extended the reach of the Church Amendment even further, amending the federal Medicaid and Medicare programs to allow plans and institutions acting as insurers to opt out of providing counseling, referral for services, services, or reimbursement for services to which they were morally or religiously opposed.^{Footnote 131} And in 2005, the Weldon Amendment to the Health and Human Services Appropriations Act prohibited federal funding to any “federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”^{Footnote 132} Each of these expansions invoked the Church Amendment as its logical precedent while significantly expanding its reach.

The most recent controversy over the scope of religious-based opt-outs from generally applicable laws involves the Patient Protection and Affordable Care Act’s requirement that company-provided insurance plans cover preventive services, including contraceptives, without patient co-payment. Nonprofit religious organizations are exempt from this so-called contraceptive mandate.^{Footnote 133} Since the passage of the ACA, the fight between those who argue that the criteria required to qualify for that exemption are far too narrow, and that the contraceptive coverage requirement violates the rights of religious individuals and organizations who object to some or all forms of contraception, and those who argue that the coverage requirement represents the government’s compelling interest in providing equal and comprehensive preventive care to women has erupted in the media, Congress, and the courts.^{Footnote 134}

In 2014, the controversy reached the U.S. Supreme Court in the case of Burwell v. Hobby Lobby, which required the court to determine whether requiring contraceptive coverage constituted a violation of the 1993 Religious Freedom Restoration Act. Under RFRA, the “government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.”^{Footnote 135} This case involved two particular companies—Hobby Lobby, a chain of crafts stores owned by the Green family, evangelical Christians; and Conestoga Wood Specialties, a cabinet maker owned by the Hahn family, Mennonites—who objected to providing insurance coverage for forms of contraception they consider to be abortifacients. These include the “morning after” emergency contraceptive pills Plan B and ella and hormonal and copper intrauterine devices. In a 5:4 decision, the court held that RFRA protects closely held corporations as persons, and that these companies should be eligible for an exemption.^{Footnote 136}

Because the Hahn and Green families have a “sincere belief that life begins at conception,” Justice Samuel Alito wrote, the “mandate demands that they engage in conduct that seriously violates their religious beliefs.”^{Footnote 137} While acknowledging that the mandate “serves a variety of important interests,” Alito argued that the existing accommodation allowing religious nonprofits to submit a form seeking an exemption from the mandate, at which point the insurance company will be required to provide contraceptive coverage, could be extended to for-profit companies.^{Footnote 138}

While there is not a straight line from the Church Amendment to Hobby Lobby, there are important points of similarity and difference between the two. The predictably partisan nature of the debate over the contraceptive mandate, for example, stands in contrast to the decidedly bipartisan support for the Church Amendment. While debating the Affordable Care Act, Senator Roy Blunt of Missouri had tried to convince Congress to include an extremely broad religious exemption. The Blunt Amendment was defeated by 51–48, with only one Republican voting against it, and three Democrats voting for it.^{Footnote 139}

The reactions to Burwell v. Hobby Lobby provide more evidence of the highly partisan nature of the debate. Republicans championed the decision as a victory for religious liberty. Senate Minority Leader Mitch McConnell praised the decision for making “clear that the Obama administration cannot trample on the religious freedoms that Americans hold dear.” Louisiana governor Bobby Jindal said that the decision “formally recognized what the overwhelming majority of Americans already knew to be true: that religious liberty is a good thing.”^{Footnote 140} Conservative activists used similar language. Charmaine Yoest, president of Americans United for Life, said: “Today’s decision is a victory for common-sense as pro-life Americans do not lose their First Amendment freedoms when they open a family business or when they value unborn life.” The Family Research Council issued a statement celebrating “one of the most significant victories for religious freedom in our generation.” And the United Sates Conference of Catholics Bishops’ statement praised the decision for recognizing “that Americans can continue to practice their faith when they run a family business . . . justice has prevailed.”^{Footnote 141}

In contrast, Democrats attacked the decision as a violation of women’s rights. House Minority Leader Nancy Pelosi criticized it as “an outrageous step against the rights of America’s women,” and a “dangerous precedent that could permit for-profit corporations to pick and choose which laws to obey.” Hillary Clinton characterized it as “deeply disturbing,” and White House Press Secretary Josh Earnest said it “violates the health of women.”^{Footnote 142} Liberal religious leaders, activists, and advocates echoed these concerns. The United Church of Christ called the decision “an affront to the religious liberty of women across the country, who we believe have a right to make decisions based on the dictates of their conscience and religious beliefs.”^{Footnote 143} The ACLU argued that rather than protecting religious liberty, the decision undermined women’s equality. “Everyone has the right to his or her religious beliefs,” its statement read, “but those beliefs cannot be imposed on others. . . . This law was designed to ensure women’s equality by eliminating the disparities in health care costs between men and women, and to ensure women have the ability to make decisions about whether and when to become parents, which in turn allows them to participate equally in society.”^{Footnote 144} And Planned Parenthood president Cecile Richards put it this way: “The Supreme Court ruled against women and families, giving bosses the right to discriminate against women.”^{Footnote 145}

This predictably partisan set of reactions suggests that the Hobby Lobby decision, along with the social and political pressures that generated the case, is an example of what the left calls the “war against women” and the right calls “the war against religion”; are just one component of the larger political and ideological fight over the Affordable Care Act; and are part of an ongoing argument about the size and purpose of government. Explaining how and why a religious exemption meant something different in 1973 than it does in 2014 offers a new perspective on the forces that shaped abortion politics in the immediate aftermath of Roe v. Wade. At the same time, the Hobby Lobby decision embodies many of the concerns of those who had worried about the consequences of the Church Amendment. These include the ways that a purportedly limited act could quickly expand in scope; the ways that recognizing the legitimacy of one set of religious beliefs and believers came at the expense of others; and the ways that poor women would be disproportionately impacted.

Justice Ruth Bader Ginsburg’s dissenting opinion characterizes the decision as one of “a decision of startling breadth” that could extend “to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations.^{Footnote 146} The real scope of the decision will be made clear as the more than one hundred remaining challenges to the contraceptive mandate make their way through the courts.^{Footnote 147}

Ginsburg also highlights the problems inherent in the majority’s claim that its decision simply protects religious rights. “Approving some religious claims while deeming others unworthy of accommodation could,” she writes, “be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’”^{Footnote 148} She emphasized that the decision protecting “employers’ asserted right to exercise religion” comes at the cost of the rights of “employees who do not subscribe to their employers’ religious beliefs.”^{Footnote 149} That cost will, Ginsburg points out, be born by “legions of women,” particularly by low-wage workers. “It bears note in this regard,” she writes, “that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”^{Footnote 150} Planned Parenthood’s Cecile Richards made the similar point that the ruling “will prevent some women, especially those working hourly-wage jobs and struggling to make ends meet, from getting birth control.” The United Church of Christ put it this way: “Those women most impacted by the inability to access the full range of reproductive health services are low-income and working women, who do not otherwise have the means to access such care.”^{Footnote 151}

The fact that Ginsburg and other critics of Hobby Lobby had the same set of concerns as Abzug and other critics of the Church Amendment highlights the deep patterns of continuity that have shaped the politics of women’s reproductive health for more than forty years. Failing to make the argument that in addition to being reasons to oppose abortion or contraceptive coverage, moral and religious beliefs could also be reasons to support them has had concrete consequences for women’s access to the full range of reproductive health services, and for physicians’ ability and willingness to provide them. That failure has also contributed to the artificial distinction between those political struggles that are about culture and values and those that are about equity and access. That distinction, in 1973 and in 2014, obscures the ways in which rights require both legal recognition and practical materialization. A right recognized by law but without the political mechanisms and economic means to access it is, as Abzug put it, a “constitutional right rendered utterly meaningless.”