Conscience vs' Access: Increasing Conflicts Over Provision of Health Care Services, and a Proposal f

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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

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Lest we take ourselves too seriously
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• 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.

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• 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 doctors 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)

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• Recent examples, contd.
• 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).

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• 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.

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• 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.

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• 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.

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• 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
  anothers 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 neighbors basic
  civil rights.

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• James Madison was the most eloquent and effective
  advocate of the second view (rights of conscience
  are fundamental rights).

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• 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.
• Madisons 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).

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• 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 individuals 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.
• Madisons view was adopted by the Founders of the
  American Constitution/republic.

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• 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
  ones own moral rights of conscience are not
  protected by law, is seems incongruous to be
  asked to respect anothers (dubious) moral claim
  for access.

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• Thomas Jefferson (Bill for Establishing Religious
  Liberty) To 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 Gods
  will.)

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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.

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• 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.

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• 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.
• The 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.

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• 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?

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• 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.
• People 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.)

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• 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)

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• 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.

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