Protection of health-care providers' rights of conscience in American law: present, past, and future.

• Author: Wardle, Lynn D.

1. INTRODUCTION: THREE PERSPECTIVES ON PROTECTING THE RIGHTS OF CONSCIENCE OF HEALTH-CARE PROVIDERS

   This Article will briefly review legal protection for a health-care provider's right of conscience in three historical periods or from three broad and overlapping chronological perspectives, which, for simplicity's sake, are labeled past, present, and future. This review will address several questions: Does legal protection for a health-care provider's right of conscience have significance as a matter of foundational principles of republican constitutionalism? Is legal protection for fights of conscience of health-care providers constitutionally permissible? Is it constitutionally required? Are current legal protections for rights of conscience of health-care providers adequate? Will they be adequate in the future? Are protections for providers' rights of conscience and patients' rights to seek legal treatments reconcilable?

   Part II of this Article reviews how protection of fights of conscience is deeply embedded in the foundational republican principles that undergird the American Constitution. Protection for rights of conscience is a fundamental human right in the American legal tradition as a matter of core principles. This part also considers the constitutional history of the validity of statutory and administrative provisions that provide protection for rights of conscience of health-care providers, and it shows that the constitutional doctrine of abortion privacy or liberty itself assumes and allows protection for the rights of conscience of providers to decline providing services that are morally troubling (to them).

   Part III briefly considers the present policy--the current panoply of legal protections of rights of conscience of health-care providers in American (mostly federal) law. The congressional enactments as well as the Provider Conscience Rule adopted by the Department of Health and Human Services in 2008, and the debate over the necessity for protection of rights of conscience in law in America today are particularly considered. Some deficiencies of the current regime of legal protections are noted.

   In Part IV, protection for rights of conscience of health-care providers in the future is considered. This part focuses particularly on the proposal to rescind the 2008 Provider Conscience Rule.

   Part V concludes that health-care providers' rights of conscience have been and can be fully protected, while patient access to services is accommodated, but only if there is full commitment to protecting, not sacrificing or giving nominal respect for, rights of conscience.

   This Article focuses primarily upon rights of conscience in the abortion context because that is where the issue has been raised, discussed, and contended most thoroughly for the past four decades. However, the issue extends far beyond the practice of elective abortion. Today, a growing number of health-care practices, procedures, medications, and methods raise serious moral concerns for at least some health-care providers. These include such issues as: human stem cell research; cloning; genetic engineering (including gender pre-selection); DNA screening and medical treatment for various genetic disorders; surgical abortion (by a variety of procedures including so-called "partial-birth abortion"); pharmaceutical abortion (by such pills as RU-486 and the "morning after pill" (MAP)); sterilization; capital punishment; assisted suicide; sex-change procedures; provision of contraceptives to minors; and provision of assisted reproduction technologies to unmarried persons and couples including gay, lesbian, and transgendered couples, (1) to name just a few of the currently controversial biomedical practices that raise profound moral implications for at least some members of our society. The principles established herein with specific reference to abortion are intended to be generally applicable in non-abortion contexts in which health-care providers may decline to provide or assist in technically possible biomedical experiments, procedures, or treatments for reasons of conscience. Of course, this discussion also has implications for questions of respect for and protection of rights of conscience (especially religious conscience) in non-biomedical contexts as well.

2. PRINCIPLES FROM THE PAST: PROTECTION FOR RIGHTS OF CONSCIENCE IS DEEPLY EMBEDDED IN THE CORE PRINCIPLES UPON WHICH THE CONSTITUTION IS FOUNDED

   Respect for rights of conscience of individuals is deeply embedded in the architecture of our Constitution and in the core principles upon which our constitutional government is based. In at least seven ways the protection of rights of conscience was historically and conceptually critical to, a part of, and embedded in the foundational principles out of which emerged the United States Constitution. The context of the origins of the Constitution gives great weight to the value of protection of rights of conscience.

   First, at the time of the founding of the Constitution, it was universally believed that virtue in people was an essential pre-constitutional foundation for any "republican" (representative democracy) form of government. Certain "habits of the heart," as Alexis de Tocqueville later called them, were considered to be necessary "preconditions" for maintaining the constitutional republic. (2)

   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. (3) This appears to have been a universal belief in the Founding Era, held by Federalists and Anti-Federalists alike. For example, Benjamin Franklin wrote that "only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters." (4) Samuel Adams believed that "neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt." (5) John Adams acknowledged: "Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." (6) He also observed: "Liberty can no more exist without virtue and independence, than the body can live and move without a soul." (7) In a letter to Zabdiel Adams he wrote that "it is religion and morality alone, which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue...." (8) Patrick Henry declared:

   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. (9) George Washington, in his Farewell Address, stated (in his typical, understated way) that: "'T is substantially true, that virtue or morality is a necessary spring of popular government." (10)

   Thus, virtue was commonly understood in the Founding Era to be the substructure upon which the superstructure of constitutional rights and government was built. If that foundation slipped, the government and the liberties it protects would not survive. (11)

   Francis Grund, an Austrian immigrant and contemporary of Alexis de Tocqueville, expressed the concept well when he wrote:

   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 of the Constitution in order to vary the whole form of their government. (12) The Founders' concept of virtue required the exercise of free will, not forced submission. The fight for religious liberty in the Founding Era was not just to protect minority churches and their members, but to protect the political society as a whole by nurturing the conditions needed for citizens to develop the quality of virtue which could not ripen in the people without their informed, free choices. The republic required virtue in the citizens to survive and thrive; and for virtue to grow and develop, liberty was essential--especially liberty to follow one's conscience and religion.

   Thus, the first point is that in the political theory of the Founding Fathers and the political principles undergirding the Constitution, protection of rights of conscience was essential, for without it virtue in the people could not develop. (13) And without virtue in the people, republican government (our Constitutional government) could not survive. Protection of rights of conscience and religious liberty had structural significance for the Constitution, for liberty is the soil in which virtue grows, and virtue is the precondition for our constitutional system of republican government.

   Second, fostering virtue was generally considered to be beyond the direct power, role, ability, competence, and safe control of the national government. (14) Virtue in the people had to be cultivated by other mediating institutions that stood between the individual and the state. Those included, primarily, the home and religion...