Conscience wars: complicity-based conscience claims in religion and politics.

AuthorNejaime, Douglas
PositionIII. Religion in Politics B. Preservation Through Transformation through Conclusion, with footnotes, p. 2552-2591
  1. Preservation Through Transformation

    We now examine how complicity-based conscience claims can serve the law reform goals of cross-denominational movements. As we have seen, many advocates of complicity-based conscience claims are interested in changing the sexual mores of the wider community. Seeking an exemption to avoid complicity in the sins of others can serve this same end. In seeking an exemption, a claimant need not withdraw but instead can employ the religious objection to criticize norms governing the entire community. Describing Hobby Lobby as "a mandate for evangelization," Bishop James Conley explained a goal of religious exemption claims:

    Our religious liberty is not an end in itself. Instead, religious liberty is the freedom for something real-the freedom to "make disciples of all nations"--to spread the Gospel, and its fruits, joyfully. If we want to protect our religious liberty, the very best thing we can do is to use it--to transform culture by transforming hearts for Jesus Christ. (150) Religious actors can evangelize by advocating for laws on abortion or marriage that conform to traditional and religious values. Or, as these comments suggest, they can evangelize by seeking religious exemptions from laws of general application that they believe contravene traditional and religious values. Without change in numbers or belief, religious actors can shift from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that offend traditional morality. Changing the form of the claim in this way matters. When defenders of traditional marriage can no longer persuade by appeal to shared beliefs about the wrongs of same-sex relationships, they may instead appeal to beliefs about the importance of protecting religious pluralism, revising the secular rationale for the claim in a way that gives more direct and uninhibited expression to its religious logic. Accommodating complicity-based conscience claims in these circumstances may function to enable "preservation through transformation": when an existing legal regime is successfully challenged so that its rules and reasons no longer seem persuasive or legitimate, defenders may adopt new rules and reasons that preserve elements of the challenged regime. (151)

    For these reasons, accommodating religious exemption claims may not settle conflict, as many contend. (152) Instead, claims for religious exemption can provide a way to continue conflict over community-wide norms in a new form. To demonstrate this dynamic, we first look back at how healthcare refusals legislation has functioned within the broader anti-abortion agenda. As we then show, advocates look to the healthcare context as a model for how similar conscience claims might function within campaigns against same-sex marriage and LGBT equality.

    1. Healthcare Refusals

    Americans United for Life (AUL) annually publishes a comprehensive set of model abortion restrictions to "enable[] legislators to easily introduce bills without needing to research and write the bills themselves." (153) The model laws restrict abortion in different ways, including "informed consent," "clinic regulation []," and bans at earlier points in pregnancy. (154)

    AUL's model legislation includes a Healthcare Freedom of Conscience Act. (155) The 2013 model act opens with a statement of purpose: "It is the purpose of this Act to protect as a basic civil right the right of all healthcare providers, institutions, and payers to decline to counsel, advise, pay for, provide, perform, assist, or participate in providing or performing healthcare services that violate their consciences." (156) The model act defines "healthcare provider" broadly to include "any individual who may be asked to participate in any way in a healthcare service, including" not only a physician or nurse but also a "physician's assistant... nurses' aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker, or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, healthcare services." (157) And the model act provides that "participate" means not just "perform" or "assist in" but also "counsel, advise, provide... refer for, admit for purposes of providing, or participate in providing any healthcare service or any form of such service." (158) The AUL model act seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.

    The network of conscience exemptions that the anti-abortion movement seeks to enact functions like other laws pressed by the movement: it impedes access to abortion. (159) For example, Mississippi's broad healthcare refusal law, described in Part II, is explicitly based on the AUL model statute. (160) Unlike the Church Amendment, which protected those who supported and those who opposed abortion and sterilization, Mississippi's law protects only individuals or institutions opposing abortion. At the same time, Mississippi has enacted a range of other measures, including some based on other AUL model statutes, to restrict access to abortion. (161) Indeed, the Fifth Circuit Court of Appeals recently blocked enforcement of an admitting privileges law that would have closed the only remaining clinic in the state. (162)

    As Mississippi illustrates, the anti-abortion movement seeks expansive conscience clauses at the same time that it continues to seek Roe's overturning and to pursue a variety of measures to limit access to abortion. (163) Given the numbers mobilized in opposition to abortion in the region, exemptions, like other forms of anti-abortion legislation, can obstruct and stigmatize abortion, functioning as part of a broader legislative strategy to make access to abortion--and contraception--increasingly difficult.

    This use of conscience clauses illustrates how opponents of abortion can change the kinds of rules and reasons they employ to enforce contested norms--an example of "preservation through transformation." (164) Constitutional decisions protecting the right to privacy have partly disestablished social norms that were once enforced through laws criminalizing contraception and abortion. (165) Advocates seek the reversal of these decisions. But where unable to reinstate a law of general application that enforces traditional sexual morality, they seek exemptions in the name of religious liberty from laws that contravene customary morality. In this way, anti-abortion advocates shift from speaking as a majority enforcing customary morality through the criminal law to speaking as a minority seeking religious exemptions in the civil law.

    Through this lens, we can appreciate how conscience provisions allow advocates to rework a traditional norm that was once enforced through the criminal law into a norm that is now enforced through a web of exemptions in the civil law. With the law's authority, traditional and religious norms can be enforced against third parties outside the religious community. By enacting laws exempting individuals and institutions in the healthcare industry from duties of patient care and authorizing them to express complicity-based objections to associations with certain patients, the state creates a parallel legal order.

    The separate normative order authorized by healthcare refusal laws may take a highly institutionalized form. For example, Catholic healthcare delivery is governed by the Ethical and Religious Directives for Catholic Health Care Services (Directives), promulgated by the U.S. Conference of Catholic Bishops (USCCB). (166) Implementation of the Directives, which ensure that healthcare is delivered in conformance with Catholic theological principles regarding cooperation and scandal, (167) is enabled by healthcare refusal laws. According to the Catholic Health Association, one in six patients in the United States is treated by a Catholic hospital. (168) (In Washington State, approximately half of the state's healthcare system is now Catholic-run. (169)) It is clear, then, that healthcare refusal laws empower a substantial segment of the healthcare industry to operate in conformity with religious principles that dictate limitations on services relating to abortion and contraception.

    But the Catholic hospital system is not the only organization coordinating claims on refusal laws. Religious hospitals represent nearly a fifth of the healthcare delivery system in the United States, (170) and eight of the twenty-five largest healthcare systems are religiously owned. (171) Even secular hospitals may act on a traditional norm widely shared in the community. (172) And other loosely affiliated providers may act on the basis of shared convictions. For example, resistance to emergency contraception may be widespread and include both hos-

    pitals and pharmacies. (173) In states and regions where abortion and certain forms of contraception are stigmatized, healthcare refusal laws, along with other restrictions, may create a system in which the disestablished sexual norms continue to be enforced. With widespread, cross-denominational assertion of claims for exemption, accommodation of complicity-based conscience objections can have far-reaching effects.

    (2). Same-Sex Marriage and LGBT Equality

    Looking back at the spread of healthcare refusals legislation raises questions about the future trajectory of religious exemptions concerning same-sex marriage. In the sexual orientation context, complicity-based conscience claims, which are beginning to proliferate, have been modeled on healthcare refusals. (174) As religious groups opposing same-sex marriage suffer losses in politics and litigation, critics of same-sex marriage, including the Manhattan Declaration's Robert George, encourage them to look...

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