Transcript Conscience vs. Access - J. Reuben Clark Law School

Conscience vs. Access:
Increasing Conflicts Over Provision
of Health Care Services, and a
Proposal for a Just Resolution
by Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School, Brigham Young
University
Presented to the Federalist Society Chapter
at George Mason University Law School
October 7, 2009
Lest we take ourselves too seriously
I. Introduction: The Old and the New
Many examples of conscience-vs-access conflicts
Abortion
Sterilization
Contraception
Artificial Reproduction
Withdrawal of life support
Withdrawal of nutrition/hydration
Assisted Suicide, etc.
Recent examples of conscience-vs-access conflict:
1) Pharmacists fired for exercising conscience right by
referring patient seeking non-therapeutic abortifacient drug to
another pharmacist in the same pharmacy, or in a nearby
pharmacy. (ongoing).
2) Nurses compelled over conscience objections to participate
in abortions and sterilizations, or demoted, or fired. (ongoing)
3) CA Catholic fertility doctor’s defense of
conscience/religious exemption rejected when sued for
discrimination by lesbian she referred to another doctor in the
same clinic (who treated her). (2008)
Recent examples, cont’d.
4) ACOG Ethics Opinion 385 “The Limits of
Conscientious Refusal in Reproductive Medicine”
(shallow, biased, “accommodation” of the rights of
conscience [minimally defined] of providers
subordinated to the dominant goal of insuring
easy access to abortion and similar services).
Conflicts between conscience and access are not
new (Hippocratic oath 2400 years ago), but
they are increasing in intensity and frequency
NB: Arguments have changed from right to
private choice of abortion to demand for
public support and use of public coercive
powers to support, facilitate abortion.
The American health care system can protect the
basic rights of providers who have religious
objections to providing certain services while still
accommodating effective patient access to
medical services.
Two conditions:
1) Full respect for the core principle of respect for
religious freedom/conscience, and
2) Practical and reasonably complementary
solutions, even if they are less than ideal.
The implications are greater than individual rights
and access to medical services.
Each generation must discover for itself the values.
Each generation must discover debate anew and
decide anew, as in Philadelphia in 1787, the
principles of government and the basic human
rights that they protect.
II. The Fundamental Principle:
Two competing views in 18th century (Founding Era) America
about protection of religious rights of conscience.
One view was that protection of conscience was a matter of
utilitarian tolerance and prudent political accommodation –
toleration.
The other view was that protection for conscience was and is a
matter of a fundamental right – a basic human right.
It makes a big difference whether respect for another’s moral
convictions is given simply as a matter of tolerance (to be
suspended when outweighed by other political
considerations), or whether that is a matter of your
neighbor’s basic civil rights.
James Madison was the most eloquent and effective
advocate of the second view (rights of conscience
are fundamental rights).
The Virginia Declaration of Rights initially guaranteed “fullest
toleration” of religion.
Madison amended it to provide that “all men are entitled to the full
and free exercise of [religion] according to the dictates of
conscience.”
Madison’s Memorial and Remonstrance used the language of
rights, not mere toleration: “The equal right of every citizen to
the free exercise of his Religion according to the dictates of
conscience is held by the same tenure with all our other rights.”
He described it as “an unalienable right,” and explained: “The
Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to
exercise it as these may dictate. . . . It is the duty of every man to
render to the Creator such homage, and such only, as he believes
to be acceptable to him.”
• James Madison, Memorial and Remonstrance Against Religious
Assessments, ¶ 15; Id. at ¶ 1. (emphasis added).
Madison further wrote in Memorial and Remonstrance:
“Before any man can be considered as a member of Civil
Society, he must be considered as a subject of the Governor
of the Universe: And if a member of a Civil Society, who
enters into any subordinate Association, must always do it
with reservation of his duty to the general authority; much
more must every man who becomes a member of any
particular Civil Society, do it with a saving of his allegiance
to the Universal Sovereign.” (Id. at ¶1.)
The individual’s right of conscience is tied to and derives from
his pre-existing and superior duty to God. If you require a
person to betray his first, most sacred, duty (to God), you
have destroyed the moral basis for obedience to the
unenforceable, and reduced law to mere coercion.
Madison’s view was adopted by the Founders of the American
Constitution/republic.
It still is futile to expect citizens in a free democracy
to obey the laws, if the laws do not allow them to
be faithful to their God and obedient to His laws.
Denial of rights of conscience of health care
providers undermines the moral foundation for
the moral claims of others to access to
controversial services. If one’s own moral rights of
conscience are not protected by law, is seems
incongruous to be asked to respect another’s
(dubious) moral claim for access.
Thomas Jefferson (Bill for Establishing Religious
Liberty): “[T]o compel a man to furnish contributions of his money for the propagation of opinions
which he disbelieves is tyrannical and sinful.”
(Image what he would say about compulsion to
perform acts, like abortion, which the person
believes are evil & contrary to God’s will.)
Virtue and the ‘constitution’ of the
United States of America
• What ‘constitutes’ our nation?
• The Founders of our Constitution believed
that there was a ‘sub-structure’ upon which
the ‘superstructure’ of our Constitution and
Laws rested.
The Structural significance of protection of rights of conscience:
“The idea of virtue was central to the political thought of the founders of the
American republic. Every body of thought they encountered, every
intellectual tradition they consulted, every major theory of republican
government by which they were influenced emphasized the importance of
personal and public virtue. It was understood by the founders to be the
precondition for republican government, the base upon which the
structure of government would be built.”
-Richard Vetterli & Gary
Bryner, In Search of the Republic 1 (1996)
Francis Joseph Grund:
• “I consider the domestic virtue of the Americans as the principal source of
all their other qualities. . . . No government could be established on the
same principle as that of the United States with a different code of morals.
The American Constitution is remarkable for its simplicity; but it can only
suffice a people habitually correct in their actions, and would be utterly
inadequate to the wants of a different nation. Change the domestic habits
of the Americans, their religious devotion, and their high respect for
morality, and it will not be necessary to change a single letter in the
Constitution in order to vary the whole form of their government.”
Benjamin Franklin: “only a virtuous people are capable of freedom. As
nations become corrupt and vicious, they have more need of masters.”
James Madison : “To suppose that any form of government will secure liberty
or happiness without any virtue in the people, is a chimerical idea.”
John Adams: “Our constitution was made only for a moral and religious
people. It is wholly inadequate to the government of any other.”
Washington also declared, “Free suffrage of the people can be assured only
‘so long as there shall remain any virtue in the body of the people.’”
-The Papers of George Washington, Letter of Feb. 7, 1788.
“[T]he foundations of our National policy will be laid in the pure and
immutable principles of private morality”
-Inaugural Address of 1789
Patrick Henry: “Bad men cannot make good citizens. It is when a people
forget God that tyrants forge their chains. A vitiated state of morals, a
corrupted public conscience, is incompatible with freedom. No free
government, or the blessings of liberty, can be preserved to any people
but by a firm adherence to justice, moderation, temperance, frugality, and
virtue; and by a frequent recurrence to fundamental principles.”
Thus, in Republican political theory ubiquitous in America in 1787) virtue was
universally believed to be the substructure upon which the superstructure
of constitutional government and its protection of human rights rested.
What does failure to protect rights of conscience of
health care providers (doctors, nurses, pharmacists,
etc.) do for the substructure of our constitutional
freedoms and government?
III. Practical Protections and Accommodations
Professor Kent Greenawalt:
“In principle, people should not have to render services that
they believe are forbidden directly by God or are deeply
immoral. However, any privilege to refuse needs to be
compatible with individuals being informed about and being
able to acquire standard medical services and drugs, and
with health care institutions and pharmacies not having to
turn handsprings to have personnel on hand to provide
what is needed.”
“[P]eople who can get treatment or drugs elsewhere and have
adequate information about alternative possibilities have a
much less powerful claim that refusal impinges on them to
an impermissible degree.” (Kent Greenawalt, Objections in
Conscience to Medical Procedures: Does Religion Make a
Difference? 2006 U. Ill. L. Rev. 799, 823-24.)
Practical Examples of Balancing Rights of Conscience
and Accommodation of Access:
American Pharmaceutical Association 1998 policy protecting
rights of conscience of pharmacists and accommodation of
access by “a system to ensure patient access to legally
prescribed therapy without compromising the pharamcists
right of conscientious refusal,” such as toll-free telephone
access to information about pharmacies and pharmacists who
will fill controversial prescriptions that would violate the rights
of conscience of other pharmacists.
Washington state successfully implemented that program.
Church Amendment of 1973
Expansions Danforth and Weldon amendments
State conscience protection provisions (all states but AL, NH, VT)
IV. Conclusion: We Can Do Both
Tensions between religious values and professional obligations can be
reconciled by respecting both interests.
It takes more time, effort and creativity.
That irritates those ideologues whose goal is maximum ease and
efficiency of delivery of controversial health services.
That also may be one reason why profit-driven or cost-conscious
health care institutions and organizations are impatient with
efforts to protect rights of conscience.
While protecting rights of conscience and of access to services may
sometimes requires some cost or sacrifice on both sides, in the
long run, it takes less time and expense than the litigation, deep
resentment, and backlash that denial of the first American right –
the rights of religious conscience -- inevitably produce.