Medical Conscience Rights, Part 1
April 23, 2020
by Andrè Van Mol, MD
What are conscience rights?
Per Alliance Defending Freedom: “Freedom of conscience means you are free to carry out your moral duty without fear of government coercion or punishment.”
Also, it need not be faith-based to count. Conscience is conscience, and these rights protect our atheist colleagues as they do us. Canadian philosopher Edward Tingley explains that conscience rights protect those who object to the norm of what even a majority thinks is right, and they apply when (1) a cogent claim can be made that (2) grave wrong is done. The claim of wrong needs only to be serious and defensible.
Conscience rights exist precisely to protect someone who disagrees with majority consensus. They specifically protect unpopular opinions. The objection needs only to be serious and defensible.
Moral Complicity and The Right to Recuse Oneself
Moral complicity is a culpable association with wrongful acts, and it is prosecutable. The right to non-complicity is the right to recuse oneself from, for example, a treatment situation one protests. Coercing a physician or other healthcare professional into moral complicity with an action they oppose sets them up to be sued if the patient later decides they made a mistake or simply feels insulted. (For further reading, see here.)
Most Conscience Rights Are Under Assault, Including Yours
An emergency room physician for the United Kingdom’s National Health System (NHS) was fired for refusing to address a biological male as a woman. The court’s ruling stated: “Belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals.” The court added, “… in so far as those beliefs form part of his wider faith, his wider faith also does not satisfy the requirement of being worthy of respect in a democratic society….” He is appealing.
Should you find yourself assailed by such breathtakingly ignorant opinion, remember the source of concepts like human rights and equality. Jurgen Habermas, Europe’s most influential philosopher, stated, “Egalitarian universalism, from which sprang the ideas of freedom and social solidarity…human rights and democracy, is the direct heir of the Judaic ethic of justice and the Christian ethic of love…To this day, there is no alternative to it…Everything else is just idle postmodern talk.” French philosopher Luc Ferry asserted that human rights stem from the biblical ideas that each human is made in the image of God and therefore has dignity and rights, as well as the teaching that the Logos is a person. Both men are atheists. British historian Tom Holland (not the Spiderman actor), who re-embraced Christianity after having renounced it for other pursuits, credits Christian heritage as the reason why, even in post-Christian societies, “we generally assume that every human life is of equal value.”
Some opponents allege that freedom of conscience denies patients access to healthcare. We’ve heard this for decades with little evidence to support it. First, my refusal to perform a procedure or dispense a prescription I professionally find harmful, ill advised or ethically wrong does not prevent a patient from shopping elsewhere. Second, a strongly desired prescription or procedure is not automatically “healthcare.” Fad medicine exists, and it is often bad medicine, even when pushed by professionals and their organizations, with the lobotomy craze of the 1950s to 1960s being a profoundly sad case in point. Reducing healthcare professionals to vending machines—or else—precludes us from carrying out the “do no harm” provision of the Hippocratic Oath. Third, per Alliance Defending Freedom, “Conscience rights enable patient choice, because they allow patients to choose a healthcare professional who shares their beliefs and values.”
Others charge that conscience rights legislate morality. I deem this position both a smokescreen and projection. Morality deals in “oughts” and “ought nots”—what one should and should not do. Medicine is inherently a moral undertaking. We instruct patients daily regarding oughts and ought nots. Similarly, legislation is an inherently moral undertaking. It is the distillate of morality from somewhere or someone.
The “moral imposition” argument against conscience laws seems clearly its own attempt to impose ideologies masquerading as objectivity.
Religious freedom is a big factor here, and it is often the issue most resented by opponents. Should we shutter faith-based hospitals and clinics providing care for the poor? What about religious adoption services and other ministries? Does that sound wise? Abolitionists, women’s suffragists and the Rev. Dr. Martin Luther King were specifically and vocally biblically motivated with the aim of influencing courts and legislatures. Should they have kept their faith-based convictions a private matter? Would the world be a better place if religious freedom meant one could only follow conscience after government approval? If so, what freedom is left?
What Legal Protections Exist for Rights of Conscience?
Professionals and institutions have the right to refuse to participate in or to refer for procedures, practices and the like that violate their moral, ethical or religious convictions of right and wrong. Please allow me to add that my comments in this post do not represent legal guidance, as that’s what lawyers are for.
The First Amendment of the U.S. Constitution is predicated upon conscience rights and it dissolves without them. The original version proposed by James Madison stated, “The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext be infringed.” Thomas Jefferson wrote, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.”
The Free Exercise Clause of the First Amendment may provide protection if one can demonstrate that the government singled out religious belief—was not neutral to religion—for sanction. The Constitution does not generally protect you against private institutions, only from government coercion.
Four main federal laws protect healthcare professionals and institutions from discrimination and prosecution for exercising conscientious objection:
- The Church Amendments 1973
- The Coats-Snowe Amendment of Public Health Service Act
- Hyde Weldon Amendment 2001
- The Affordable Care Act, more so since amended
The Church Amendments to the 1973 Public Health Service Act offer broad coverage. These apply to recipients of federal dollars (governments, courts, public officials, etc.) and where certain federal health-related and research funds are received. The Church Amendments prohibit discrimination against or coercion of healthcare professionals (including interns and residents) and hospitals that object to performing abortions, sterilizations, assisted suicide and other procedures or services due to religious or moral convictions. Of particular relevance, it
protects personnel who conscientiously object to performing or assisting with any lawful health service based on a person’s religious beliefs or moral convictions. That means the Church Amendments affirm non-complicity while rebutting the accusation that healthcare professionals need to “do your job, do it all or get out of medicine!”
The Coats-Snowe Amendment of Public Health Service Act and the Hyde Weldon Amendment deal primarily with abortion. The Affordable Care Act’s protections regard qualified health plans within health insurance exchange programs and prohibit discrimination for objection to abortions (Section 1303(b)(4)) and assisted suicide (Section 1553).
Another source of extensive protection is the Religious Freedom Restoration Act of 1993 (RFRA). It enforces the First Amendment’s protection that the federal government cannot force you to engage in activities that substantially burden your religious exercise unless the reason is “of the highest order.” The federal government must prove two things to justify a “highest order” exemption:
(1) there is a “compelling government interest” involved in enforcing this requirement; and (2) the government cannot accomplish this goal in a manner less burdensome to your religious beliefs. The RFRA does not apply to state or private organization actions, but some state RFRAs provide additional important restrictions on government.
Title VII of the Civil Rights Act of 1964 affords employment anti-discrimination protections. Applying to employers with more than 15 full-time employees,
Title VII requires your employer to accommodate your religious beliefs provided this is not unduly burdensome, and it forbids discrimination, firing or disciplining on the basis of religion.
On May 2, 2019, the U.S. Department of Health and Human Services (HHS) announced its final conscience rule protecting healthcare entities and individuals in HHS-funded programs. Per the HHS website, this will “…protect providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide.” It awaits a court challenge.
Conscience rights are constitutional priorities as well as professional and personal necessities for free people, and these enjoy strong and historic support from the legislature, executive branch and judiciary. They are worth defending, especially when misrepresented and misunderstood.
In part two of this commentary, I will address conflicts between rights of conscience and sexual minority legislation.
 Jurgen Habermas, Time of transitions (Cambridge: Polity Press 2006), p. 150-151.
 Tim Keller, “Encounters with Jesus: Unexpected Answers to Life’s Biggest Questions” (Penguin Books, 2015).
 The Writings of Thomas Jefferson, H. A. Washington, editor (New York: Biker, Thorne, & Co., 1854), Vol. VIII, p. 147, to the Society of the Methodist Episcopal Church at New London, CT on February 4, 1809.