Do You Deserve a Legal Conscience Clause?

Now that the debate about payment for end-of-life counseling seems to have died down, let's move to another heated issue in the health care debate: conscience clauses.

In the current context, people assume such clauses provide legal protection against a health care provider being forced by the government to participate in anything connected to abortion or contraception. (Depending on the interpretation, the definition of "health care provider" and "connected" can extend as far as someone whose job includes cleaning an operating room that had been used to perform an abortion.)

President Obama has assured the nation that he wants there to be a "robust conscience clause" in whatever health care reform bill reaches his desk.

But that's hardly the only area of American life that includes legal conscience protection. During the last military draft, men could claim they were conscientious objectors to all war and avoid military service. You can't be forced by the government to swear an oath, salute the flag, pray or pay for a permit to go door-to-door to proselytize.
So I wondered: Are there general principles we could apply to help decide whether jobs other than health care provider should be entitled to legal conscience protection?

An obvious gold standard might be: A person deserves to have their conscience claim legally protected if they're right. But that can't work because different people can claim totally contradictory conscience positions on the same issue -- without either side being able to offer proof that isn't in some way based on faith.

Who is right or wrong in an absolute sense about the personhood of a fetus, for instance, isn't the point. In a secular, legal society, the question isn't about absolute truth. It's about the kinds of deeply held opinions that deserve legal protection.

I decided to seek out people publicly identified with defense of the abortion conscience clauses and ask them for suggestions about principles we could use to decide if other jobs deserved similar protection. I framed the issue by inventing some people who might want to claim legal conscience protection. Remember that whether you agree with them – or whether such people even exist – is not the point. We're looking for hypotheticals that can help us identify overarching principles:

Health care workers are hardly the only people who could be asked to perform duties that profoundly offend their conscience.

What about a teacher required (as in my home state of Texas) to teach abstinence-only sex education and who believes that it not only contributes to more unwanted pregnancies but to more abortions?

Or, a teacher required to teach evolution but who believes that doing so pushes his/her students to eternal damnation (a fate quite literally worse than death)?

Or even a cashier at a grocery store who has a profound moral objection to the slaughter of cows and sale of beef? Should that person be able to object to being forced to ring up a brisket? (And let's introduce government influence to this example by having some of the customers pay with food stamps.)

One might say these people should find another line of work. But that same argument would apply to health care workers and abortion.

How should we draw the line?

Most of the people I contacted initially had trouble getting out of their own boxes. They wanted to explain to me why their particular conscience claim self-evidently deserved protection.

Jill Stanek, for instance, is a nurse-turned-advocate. Her blog says she writes "with her typing fingers on the pro-life pulse."

She courteously responded to my query, but mostly declined to engage.

"It is not my place to argue whether all matters of conscience should be federally protected. If a group of teachers, or garbage collectors, or car salesmen think their consciences are being violated, then it is up to each group to defend its rights. The EEOC does a good job there.

"You must see that abortion, the direct killing of another human being, is set apart. The armed services allows for conscientious objection for the same reason. Certain breaches of conscience carry more weight."

But that at least gives us one potential rule:

Life-or-death issues are entitled to more legal protection.

Karen Brauer, president of Pharmacists for Life International, dissed my questions as "exceedingly routine" and proceeded to mostly not answer them, or at least not seek out broader principles to apply. Here's as close as it got:

"It is a human right to choose to avoid direct involvement in killing another human in health care practice.

"Leftists choose to relegate this human right to a lower priority than
1) their own access to recreational sex,
2) making very young individuals more available for sex, and
3) protecting rapists from prolonged prison sentences or other deterrents.

"Those three things are higher in the leftist hierarchy of human need than the human right to avoid killing other humans. My respect for human life is highest priority, and this places me at extreme odds with today's leftists."

Hm. No additional general nuggets to glean from that one.

Richard M. Doerflinger is the associate director for policy development at the Secretariat for Pro-Life Activities for the U.S. Conference of Catholic Bishops. He had the most to say about his own particular issues. But he suggested that his issues are linked to a higher moral principle:

"Even in the health care realm, while there are indeed broader issues of conscience, abortion is objectively different from many other things. Even the Supreme Court that legalized abortion nationwide upheld the idea that government may use its funding power to encourage childbirth over abortion, stating: 'Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.' "

But can we use that special case to draw out a broader principle? He gave it a shot.

"I would say that the claim of a conscience right in medicine is especially strong when the procedure in question is arguably not a medical procedure at all except by someone's social convention. We should allow doctors and nurses to exist who still believe that the concept 'medicine' has its traditional or objective meaning, having to do with the healthy functioning of a living human body and the physician's professional responsibility to serve that good."

Which I'm afraid translates into: A person deserves a conscience right when they're right. After all, the question of whether a medical procedure is merely a "social convention" or not is exactly the kind of dispute that I'm trying to avoid when searching for broader principles.

Dr. Gene Rudd is senior vice president of the Christian Medical and Dental Association. As with several of my other discussion partners, he argued that abortion occupies a special place in any debate about conscience protection. But he came up with a hierarchy of conscience rights grounded in the Declaration of Independence:

"Rights conflicts will always exist in a society. We must have a way of resolving them. Our founding fathers (of course influenced by the mothers) wrote of 'life, liberty and the pursuit of happiness' as being inalienable. While they cannot justly be taken away, they are not equal. When someone's liberty conflicts with another's pursuit of happiness, how do we decide?

"The founders understood (because they read Locke and others) that these categories of rights are ordered. They reflected that in how they wrote (including the ordering of the words in the above phrase from the Declaration). Life rights trump liberty rights which trump pursuit of happiness rights."

David Christensen is director of Congressional Relations for the Family Research Council. And while it was clear that my questions really stretched him out of his comfort zone, he made a serious effort to go beyond the specifics of any example and into broader principles. After a bit of conversation, he came up with this:

"The general principle is that you want to provide a space for the individual to make up their own mind to decide whether they should participate in an action that they may find morally objectionable."

And:

"You want to make accommodations, too, for individuals to carry out their freedom as long as it is not impinging on other individuals."

We both got tangled up with my example of the public school teacher and abstinence education. In that case, as he pointed out, the moral objection would be to a potential consequence – more unwanted pregnancies or more abortions – and not to the act itself. Which doesn't mean there should not be a legal defense, he said, but that it's a lot more complicated. And he is surely right about this:

"That's the hard part in any kind of moral theorizing. You can come to an agreement on a principle and disagree about how it to be applied."

And finally, we come to Ken Klukowski, a constitutional attorney and fellow and senior legal analyst with the American Civil Rights Union (which he describes as "the conservative counterweight to the ACLU"). Ken totally got with the program. He came up with a set of principles that he was comfortable with:

1) Constitutional rights in this regard apply only against the actions of government. Statutes and regulations can expand those rights provided they do not violate the Constitution.

2) Even someone acting as an agent of the government – a teacher in the classroom of a public school, for instance – retains First Amendment rights to express a conscience objection to a particular action or policy. And perhaps that right needs bolstering by statute or regulation.

3) An action intrinsic to a particular job is much less entitled to protection because the person knew or should have known the objectionable act was likely to occur.

4) In attempting to decide whether a particular conscience claim is entitled to legal protection, materialistic evidence can be helpful but never decisive.

5) The government should make a strong presumption that a person's assertion of a conscience claim is true.

6) Assessing the validity of a conscience claim is extremely difficult. As is deciding how to draw the lines to exclude frivolous or manufactured claims.

7) Legal conscience provisions are more important in instances where an active conflict – a challenge to the conscience claim -- is contemplated.

8) While conscience claims are not restricted to religious people, they are restricted to people who assert a moral belief.

There are limits to any of these rules, of course. A person who wants to claim a new religious belief that makes paying taxes immoral would find tough legal sledding, he said, noting, "I would imagine there would be a fair number of people who would suddenly be converts to a religion where they would be forbidden to pay taxes."

"The teacher retains sufficient First Amendment rights that he should be able to state to the class that he does not personally believe this teaching, that he believes it is counterproductive in terms of its stated goals and that he is only teaching it because he is required to do so. Having made that statement, however, he needs to then teach the material. He can then finish his talk by reiterating that for reasons of his own he does not believe this material or does not believe that it advances its intended purposes."

I can only imagine the furor that would be set off by a teacher doing that. Which means that under Ken's Rule No. 7, it may well be a good candidate for legal protection.

And now it's your turn. Seriously. Are there tasks, jobs, actions that are not currently protected that you believe should have the benefit of a legal conscience clause? E-mail me your suggestions at Conscienceclauses@yahoo.com. Briefly describe what you think needs protection – and do tell me why. Use any of the principles articulated here – or come up with others of your own.

Remember, I'm not interested in "proof" that a particular position is "true," only that it deserves legal protection.

In the immortal words of Captain Planet: The power is yours!