Refusals of conscience: what are they and when should they be accommodated?

• Author: Greenawalt, Kent

Approaching this subject as a decided nonexpert, I want to explore a number of questions about a right to conscience in respect to refusals to provide health-care services. My hope is that the questions will seem important and relevant, even if some of my tentative answers are controversial or even misguided.

It is helpful to distinguish three levels of analysis: 1) What would be an ideal scope for rights of conscience if we could put aside difficulties of administration and political feasibility? 2) What would be a desirable approach given administrative and political realities? 3) And in what rhetoric should claims of conscience be formulated when supporters address those with authority to enact legal rights?

I am assuming that at the first two levels, a theorist is aiming to be as objective and open as possible; I do not suppose that about those engaging in what I shall call public rhetoric. This can present a dilemma for a scholar who perceives an issue as complex but is strongly committed to particular outcomes, who finds herself in an influential role, and believes that effective persuasion demands oversimplification.

Let me give an example, one that starts from my particular sense of our historical tradition. The basic right of conscience regarded as critical at the Founding was the ability to develop one's religious beliefs and practice worship with co-believers free of government interference. Although Michael McConnell has made a strong case that some basic right was recognized to be exempt from the imposition of general laws not themselves directed at religion, (1) other able scholars disagree, (2) and insofar as one can discern their position on this precise question in relation to the Free Exercise Clause, the majority of the Supreme Court apparently agrees with those scholars. (3) One thing that is clear is that John Locke, in the small amount of attention he gave to the question, saw no problem with applying general, neutral laws to those with opposed religious conviction. He suggested that a law against killing cattle could properly be enforced against those who believed they should engage in religious sacrifices of cattle. (4) I am unaware of any suggestions that the Founders would have contemplated the government mandating how private businesses should respond to employees who decline from conscience to perform tasks that are part of their jobs.

I do not mean to imply that historical recognition of the importance of conscience is irrelevant, but some vital steps need to be filled in--namely, that the significance of freedom of conscience extends beyond what some early proponents clearly recognized, that we now see the government as a potential protector of liberty, as well as an infringer of liberty, and that with pervasive modern government involvement in the provision of services and in ordering the economy, restrictions on how private employers deal with their own workers make sense. Laws banning racial, sexual, and religious discrimination are a powerful illustration, and indeed an employer's refusal to accommodate conscience, especially religious conscience, can be regarded as one form of such discrimination.

The dilemma for someone who advocates government protection of conscience is how much of this complexity to acknowledge when one is urgently seeking reform. A simpler approach that stresses our tradition of freedom of conscience may be more effective. In any event, for the third level of analysis, rhetorical effectiveness, one might choose to simplify matters not only in respect to how rights are formulated but also in respect to their theoretical justifications.

In what follows, I will disregard two very important distinctions for our system of government. Although I am strongly opposed to the Supreme Court's ruling in Employment Division v. Smith that the Free Exercise Clause provides no protection against the application of typical neutral laws of general application, (5) I shall not consider how far claims of conscience in respect to health care should be constitutionally grounded. I treat the issues as ones to be resolved by statute. I also disregard the problem of how much should be resolved by federal rather than state law.

At the first level I have suggested, the ideal scope for rights of conscience, some of the critical questions are: What classes of persons should be able to invoke a legal right? What attitude on their part should give rise to the right? Should nonreligious as well as religious claims be included? What should be the scope of the right in relation to the desires and needs of those seeking health care and the needs of institutions providing it? And what actions should the right protect against and with what remedies for violations?

The attitude that should underlie a right of conscience presents a fascinating question that could affect perceptions about what is involved, but probably has little operational significance.

Some laws provide simply that one cannot be required to participate; others are cast in terms of "moral or religious grounds," "conscience," or "conscientious objection." (6) A person who self-consciously objects to providing a form of health care because doing so triggers painful memories or is aesthetically unpleasant does not have a moral objection or, I shall argue, a claim of conscience. In one respect, claims of conscience are a narrower category than all moral objections. A nurse who believes that elective plastic surgery wastes resources, perpetuates unhealthy denials of aging, and reflects the worst of a culture that is increasingly materialist and superficial, may have moral reasons not to participate but these do not, without more, make her assistance an act against conscience. I believe this term in its modern usage connotes something stronger, (7) that she would disregard a deep aspect of her identity if she went along. (8) Along this vague spectrum, "conscientious objection" may be an even stronger term, one that seems to suggest that an individual would rather undergo (or believe that she should be willing to undergo) serious hardship rather than perform the act in question. We do not think a person is a genuine conscientious objector to military service if he thinks performing that service is preferable to spending two months in jail. We do not think that someone is a conscientious objector to jury service if she thinks doing jury duty is preferable to paying a fine of $200.

Is it possible that objections in conscience may extend beyond moral reasons? Suppose the person with the painful memory or strong aesthetic distaste says, "This is now part of my identity. I have an objection grounded in my conscience, given who I take myself to be." This is a conceivable way to speak of conscience, one that cannot be ruled out by reference to the term's general meaning; (9) for the purpose of a legal exemption, from ordinary responsibilities at least, nonreligious conscience is better conceived as having a moral dimension. (10) How to treat an obligation believed to be owed to God that is not about morality, such as the obligation to wear a yarmulke, is a harder question.

As with moral claims in general, (11) all religious claims is a broader category than religious claims of conscience. A Roman Catholic druggist might have a religious objection to providing artificial means of birth control, without that objection rising to a claim of conscience. (12)

This brings us to the division between religious claims of conscience and nonreligious ones. Perhaps in order to avoid the painful question whether religious claims really should be preferred, the Supreme Court on occasion, like some scholars, has been inclined to treat all genuine claims of conscience as religious. (13) I think this is both artificial conceptually and unnecessary to reach sound constitutional conclusions. (14)

What is wrong with treating all claims of conscience as religious? First, we think of some people as nonreligious or antireligious; we cannot deny that these people could have a claim of conscience. Do we want to say that whenever they do, they have become partly religious? And what of religious people in our society? Many sincere Christians experience aspects of moral life that they perceive as only remotely connected to their religious convictions and practice. A wife who is tempted to leave her husband but is afraid she might lose custody of her children, says, "I cannot in good conscience abandon the kids. This is not a religious matter for me, but my conscience tells me that would be deeply wrong." If pressed, she might acknowledge that her faith includes notions of love and family responsibility, but in her mind and feelings, the very high priority she places on staying with her children is only remotely related to religion. Although this example raises perplexing questions about cause and effect and about what linkage to religion is needed to make a claim of conscience religious, it also helps to show the untenability of assuming that all claims of conscience are automatically religious.

I am fully aware of the difficulty of distinguishing the religious from the nonreligious, but a great many phenomena fall clearly on each side of the divide, leaving a fuzzy border in the middle.

The equality argument for treating all claims of conscience similarly is straightforward. Is there any plausible basis for religion being singled out for special treatment?

One reason, of course, is such treatment within our legal and cultural traditions. (15) Another reason in regard to some kinds of claims is the difficulty of imagining a nonreligious analogue. Suppose a right were created not to participate in blood transfusions. Given a high probability of safe blood, we are hard put to imagine a nonreligious claim of conscience of the same magnitude as the Jehovah's Witnesses' rejection of that practice.

What if there are nonreligious analogues? One might think...