The right to conscience and the First Amendment.

• Author: Myers, Richard S.

INTRODUCTION (1)

As of January 1, 2010, Wisconsin law requires that employers who provide health insurance plans that cover prescription drugs also provide coverage for contraceptives, even when providing such coverage violates the employers' religious beliefs. (2) This law was strongly opposed by the Wisconsin Catholic Conference, which stated: "[W]e strongly object to this blatant insensitivity to our moral values and legal rights." (3) After efforts to offer a self-insured plan were abandoned, in August 2010, the Diocese of Madison began offering coverage for contraceptives. The Diocese, however, warned its employees that using the benefit could lead to their termination. (4)

As this example illustrates, the issue of the right to conscience in health care is among the most contentious in American society. Health-care professionals and institutions with traditional moral views on issues such as abortion and contraception are increasingly under attack. These professionals and institutions are finding it increasingly difficult to both comply with their legal and professional responsibilities and adhere to their moral beliefs. These professionals and institutions are increasingly asserting a right to conscience as a way of seeking an exemption from various mandates.

This paper explores the current state of the right to conscience in health care. Most of the paper focuses on the First Amendment law on this topic. It has become increasingly clear that the United States Constitution provides very little protection for religious liberty in this context. Although I support conscience rights under certain circumstances, I largely agree that the source of these rights should not be the First Amendment. Properly interpreted, the First Amendment does not generally provide a basis for conscience rights.

In addition, I think the push for a broad right to conscience, as a matter of federal constitutional law, might be counterproductive. Such advocacy may contribute to the privatization of religion and to the undermining of sound ideas of public morality.

Nevertheless, there are sound arguments to support legal (if not federal constitutional) protection for conscience rights. The source of these rights should rather be based on sub-constitutional protection developed on a case-by-case basis. These protections--largely statutory protections adopted on a case-by-case basis--do offer hope for significant protection for conscience and advocacy. The moral views reflected in these claims of conscience may in the long run help to largely eliminate the need for conscience rights.

1. FREE EXERCISE ARGUMENTS FOR CONSCIENCE

   1. Supreme Court Case Law

      The First Amendment to the Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (5) It is due in part to this constitutional amendment that the United States is associated with the idea of religious liberty. (6)

      Yet, as a matter of constitutional law there is very little support for the idea that the First Amendment provides a basis for a right to conscience. There is little support for the idea that there is a right to constitutionally compelled exemption when a state mandate burdens religious liberty. Reynolds v. United States, (7) the 1879 case in which the U.S. Supreme Court rejected a religious defense to a bigamy prosecution, provides a good example. The Court stated that as a result of the First Amendment "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." (8) The Court thought it clear that it was within the scope of governmental powers to set forth rules regulating marriage. The Court stated: "[I]t is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion." (9) "[T]he only question [the Court posed] ... is[] whether those who make polygamy a part of their religion are excepted from the operation of the statute." (10) According to the Court, to allow a religious defense "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." (11) This basic position--that the free exercise clause does not require an exemption from laws prohibiting "acts inimical to the peace, good order and morals of society" (12)--remained good law until the early 1960s. (13)

      The Court's approach changed markedly in the 1960s and early 1970s with cases such as Sherbert v. Verner (14) and Wisconsin v. Yodef. (15) The dates are significant. This development with regard to free exercise occurred at the time of cases such as Griswold v. Connecticut (16) and Roe v. Wade. (17) This was an era when philosophical liberalism had a profound influence on Supreme Court decision-making. (18) In fact, Professor Bradley concludes that the constitutionally compelled exemption doctrine of Sherbert is properly understood as "one aspect of the post-World War II takeover of our civil liberties corpus by the political morality of liberal individualism." (19)

      In Sherbert v. Verner, (20) the Court held that it violated the free exercise clause to deny unemployment compensation benefits to a Seventh-Day Adventist who refused to work on Saturday--the Sabbath Day of her faith. (21) The Court found that "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." (22) The Court then found that this penalty could not be justified. In so holding, the Court applied strict scrutiny. This meant that the Court said that it was necessary to "consider whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right." (23) Justice Harlan's dissent maintained that the Court held "that if the State chooses to condition unemployment compensation on the applicant's availability for work, it is constitutionally compelled to carve out an exception-and to provide benefits--for those whose unavailability is due to their religious convictions." (24) Since that time, the Court has adhered to Sherbert in other similar cases involving unemployment compensation. (25)

      In Wisconsin v. Yoder, (26) the Court held that Wisconsin's compulsory school-attendance law (which required children of ages between 7 and 16 to attend school) was unconstitutional as applied to Amish parents who refused to send their children to public schools after they completed the eighth grade. (27) The Court again applied strict scrutiny. (28) "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." (29) Some have celebrated Wisconsin v. Yoder's broad language. For example, Judge Noonan stated: "Conscience won, exempted from compliance with the rule that everyone else had to follow. The trajectory towards the absolute was evident." (30) Yet, although Yoder is viewed as the high watermark of free exercise protection, the ruling was in reality quite narrow. The Yoder Court mentioned that,

      [i]n light of this convincing showing [of the impact the statute had on the Amish way of life and the adequacy of the educational alter natives the Amish provided to their children], one that probably few other religious groups or sects could make, and weighing the mini mal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. (31) Even in the context of parental control of education, Yoder has had limited impact. (32)

      Sherbert and Yoder, which used strict scrutiny and concluded that the states' actions violated the free exercise clause, are the principal supports for the idea that the free exercise clause provides strong protection for a right to conscience. Under Sherbert and Yoder, religious claimants are sometimes entitled to a constitutionally compelled exemption from state mandates. Yet, despite the Court's ostensible use of the most demanding constitutional scrutiny, most free exercise claimants, even during the heyday of the Sherbert-Yoder regime, lost their suits. As one commentator described the situation, during,--this. (33) era this test was "strict in theory, but ever-so-gentle in fact....

      Prior to 1990, the Court consistently rejected free exercise claims. Sometimes the Court found that the government was able to satisfy the strict scrutiny standard, (34) even though the Court's treatment in these cases seemed less demanding than the typical view of what that standard contemplated. (35) Sometimes the Court did not apply strict scrutiny because it concluded that the claimant had not satisfied the threshold requirement of demonstrating a cognizable burden. (36) Sometimes the Court refused to apply strict scrutiny because the case arose in a special context such as the military (37) or a prison. (38) Whatever the rationale, the basic message of these cases seemed clear to most observers-strict scrutiny under the free exercise clause was not being used in a rigorous manner. (39) The constitutionally compelled exemption doctrine was given a very limited scope.

      Thus, the Court's landmark 1990 decision in Employment Division v. Smith (40) was not as momentous as it is sometimes claimed. (41) "The Court in Smith did abandon strict scrutiny in most cases but the practical impact of the decision was not that dramatic because free exercise claimants typically...