In Arkansas, can a doctor refuse to treat patients who are not vaccinated against COVID-19 and claim conscience protection under the Medical Ethics and Diversity Act?

Plain-English summary

A state senator asked whether the new Arkansas Medical Ethics and Diversity Act (Act 462 of 2021) lets a doctor refuse to see or treat patients who are not vaccinated against COVID-19, and call that a conscience-based refusal.

Attorney General Leslie Rutledge answered no on multiple grounds. The Act defines "conscience" as the practitioner's "religious, moral, or ethical beliefs or principles." She doubted whether the principle "people should be vaccinated" fits that definition at all. But even assuming it did, the Act protects a practitioner's right not to participate in a particular healthcare service that violates conscience, not the right to refuse a category of patient. The senator's questions never identified any service the practitioner objected to performing. They focused on the patient's vaccination status. That mismatch alone defeats the conscience claim.

The third question, whether some other Arkansas statute would protect such a refusal, got a flat "I am unaware of any such state laws."

What this means for you

If you are a physician or other healthcare practitioner

Based on this opinion, the Medical Ethics and Diversity Act is not a tool for screening patients by vaccination status. The conscience protection turns on the specific service you decline to provide, not on a characteristic of the patient. If a particular procedure (for example, performing a surgery that you believe is unsafe in an unvaccinated patient) violates your conscience, that fact pattern is at least the kind of question the Act addresses. Pre-emptively refusing all unvaccinated patients is not.

This is also a reminder to be precise about how you frame any conscience-based refusal in writing. The Act's text the AG quoted refers to "conscience-based objections to a particular healthcare service." Documentation that names the specific service and the specific religious, moral, or ethical principle it violates is far more defensible than a blanket policy.

If you are a hospital or practice administrator

A hospital or clinic policy of refusing care to unvaccinated patients on conscience grounds finds no support in this opinion. The AG also went out of her way to note no other state law she is aware of would protect that refusal either. So a non-emergency clinic that wants to keep an unvaccinated-patient policy for clinical or operational reasons should ground that policy in something other than the Medical Ethics and Diversity Act, and confirm with counsel that it does not run into Section 1557 of the ACA, EMTALA, or state public-accommodation rules.

If you are a patient

If a doctor or clinic in Arkansas turned you away for not being vaccinated and cited a "conscience" exception, this 2021 opinion is the direct AG view that conscience protection does not work that way under Arkansas law. It does not, on its own, give you a private cause of action, but it is useful context for a complaint to the relevant licensing board or to a healthcare attorney.

Common questions

Q: What does the Medical Ethics and Diversity Act actually protect?
A: A medical practitioner's right not to participate in a healthcare service that violates the practitioner's conscience. The Act defines "conscience" as religious, moral, or ethical beliefs or principles, and it defines "healthcare service" broadly to include initial examination, diagnosis, prognosis, dispensing medication, and other services along the course of care.

Q: Why did the AG say "you have not identified any particular service"?
A: Because the senator's questions framed the refusal around the patient's status (unvaccinated), not around any service the doctor objected to performing. The Act's protection is about the act, not the actor receiving it. Without a service objection, there is nothing the Act maps onto.

Q: Is "people should be vaccinated for COVID" a conscience belief under the Act?
A: Probably not, in the AG's view. She said it is "unlikely" that this belief meets the Act's definition of conscience. The point did not have to be settled, because the patient-status framing already broke the analysis.

Q: Does any other Arkansas law protect refusing unvaccinated patients?
A: The AG said she was unaware of any such state law. There may still be other federal or contractual factors to consider (insurance contracts, antidiscrimination laws, EMTALA in emergency settings).

Q: Could the analysis come out differently if the doctor named a specific service?
A: The opinion implies it might, at least for purposes of getting the question into the Act's actual framework. Whether the conscience-based refusal would then be protected is a separate question depending on the specific service and belief, and the AG did not reach it here.

Background and statutory framework

The Arkansas Medical Ethics and Diversity Act, Act 462 of 2021, codified at Ark. Code Ann. § 17-80-501 et seq., establishes a "right of conscience" for medical practitioners. The Act:

• Defines "conscience" as "the religious, moral, or ethical beliefs or principles of a medical practitioner" (§ 17-80-503(1)(A));
• Defines "healthcare service" as "medical care provided to a patient at any time over the entire course of treatment" (§ 17-80-503(5));
• Grants practitioners "a right not to participate in a healthcare service that violates his, her, or its conscience" (§ 17-80-504(a)(1));
• Immunizes the exercise of conscience rights from civil, criminal, or administrative liability (§ 17-80-504(a)(4));
• Bars discrimination based on the exercise of those rights (§ 17-80-504(a)(5));
• Limits the right to "conscience-based objections to a particular healthcare service" (§ 17-80-504(b)).

The "particular healthcare service" anchor in (b) is what carries the AG's analysis: conscience protection is service-tethered, not patient-tethered.

Citations

• Ark. Code Ann. § 17-80-501 et seq. (Medical Ethics and Diversity Act, codifying Act 462 of 2021)
• Ark. Code Ann. § 17-80-503(1)(A) (definition of "conscience")
• Ark. Code Ann. § 17-80-503(5) (definition of "healthcare service")
• Ark. Code Ann. § 17-80-504(a)(1), (a)(4), (a)(5) (rights and protections)
• Ark. Code Ann. § 17-80-504(b) (limited to conscience-based objections to a particular healthcare service)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-070
November 22, 2021
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Keith M. Ingram
State Senator
P.O. Box 1028
West Memphis, AR 72303-1028
Dear Senator Ingram:

This is in response to your request for an opinion on the following questions
regarding Act 462 of 2021, the Medical Ethics and Diversity Act, codified at Ark.
Code Ann. § 17-80-501, et seq. (Supp. 2021):

1. Could the belief or principle that individuals should be vaccinated for
   coronavirus 2019 (COVID-19) meet the definition of conscience under
   the Medical Ethics and Diversity Act?

2. If a medical practitioner, such as a doctor, refused, based on his or her
   conscience, to see or treat a patient who has not been vaccinated for
   coronavirus 2019 (COVID-19), would the medical practitioner be
   protected under the Medical Ethics and Diversity Act for exercising his
   or her conscience?

3. If a medical practitioner is not protected under the Medical Ethics and
   Diversity Act, would any other laws protect the medical practitioner for
   refusing to see or treat a patient who has not been vaccinated for
   coronavirus 2019 (COVID-19)?

RESPONSE

Your first two questions focus on the term "conscience" and some characteristic of
the patient. This fails to recognize that the protected "right of conscience" under
the Medical Ethics and Diversity Act ("the Act") relates to a service that violates
the practitioner's conscience. In sum, these questions miss the point of the Act.
Even if the belief that individuals should be vaccinated meets the definition of
"conscience," the answer to your second question is "no" because you have not
identified any particular service that violates that belief or principle. In response
to your third question, I am unaware of any such state laws.

DISCUSSION

Question 1: Could the belief or principle that individuals should be vaccinated
for coronavirus 2019 (COVID-19) meet the definition of conscience under the
Medical Ethics and Diversity Act?

The Act defines "conscience" as "the religious, moral, or ethical beliefs or
principles of a medical practitioner ...." It is unlikely that the belief that
individuals should be vaccinated for COVID-19 meets this definition.

But even if that were not the case, that belief alone would not be a sufficient basis
for an objection under the Act. Rather, as explained more fully in response to
your second question, to be protected, an objection must relate to performing a
healthcare service.

Question 2: If a medical practitioner, such as a doctor, refused, based on his or
her conscience, to see or treat a patient who has not been vaccinated for
coronavirus 2019 (COVID-19), would the medical practitioner be protected
under the Medical Ethics and Diversity Act for exercising his or her conscience?

The Act, in relevant part, affords medical practitioners a "right not to participate in
a healthcare service that violates his, her, or its conscience." The practitioner
"[i]s not civilly, criminally, or administratively liable for the exercise of
conscience rights not to participate in a healthcare service ...." And the
practitioner who exercises these rights "[s]hall not be discriminated against in any
manner based upon his, [or] her ... declining to participate in a healthcare service
that violates his, [or] her ... conscience."

It is clear from these provisions that the protected "conscience rights" relate to the
performance of particular services. Indeed, the Act makes clear that the
"[e]xercise of this right of conscience is limited to conscience-based objections to
a particular healthcare service" and it defines "healthcare service" as "medical
care provided to a patient at any time over the entire course of treatment,"
including such services as "[i]nitial examination," "[d]iagnosis or prognosis," and
"[d]ispensing or administering ... medication."

Because the protected "right of conscience" under the Act must relate to a
particular service that violates the practitioner's conscience, the answer to your
question is "no." The protections under the Act would not apply, given that you
have not identified any particular service that violates the belief or principle that
individuals should be vaccinated.

Question 3: If a medical practitioner is not protected under the Medical Ethics
and Diversity Act, would any other laws protect the medical practitioner for
refusing to see or treat a patient who has not been vaccinated for coronavirus
2019 (COVID-19)?

I am unaware of any such state laws.

Sincerely,
LESLIE RUTLEDGE
Attorney General