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 NewMany examples of conscience-vs-access conflicts

AbortionSterilizationContraceptionArtificial ReproductionWithdrawal of life supportWithdrawal 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 contribu-tions 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 AccommodationsProfessor 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 amendmentsState 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.