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Medical ethics

Conscience clauses: allowing
discrimination motivated by religious belief

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Conflicts over human rights and freedoms:

North Americans cherish their freedoms of belief, religion, speech, action. etc. But these freedoms are neither absolute nor unlimited. A person's freedom to wave their fists in the air stops when they impact another person's nose -- perhaps sooner.

Many of the cases heard before the courts involve conflicts between two persons' rights and freedom. Examples are:

bulletThe right for a same-sex couples to be treated equally as opposite-sex couples and be able to marry vs. the right of California voters to pass a constitutional amendment to limit marriage to a union of one man and one woman.
bulletThe right of a woman to enter a medical clinic without harassment vs. the right of pro-lifers to attempt to perform "sidewalk counseling" with the aim of finding out whether she is seeking an abortion and attempting to persuade her otherwise.
bulletThe right of a follower of Santeria to conduct a religious ritual in which an animal is sacrificed to their Gods vs. the right of the majority to ban practices that they regard as objectionable.
bulletThe right of homosexual adults to engage in physical intimacy in private vs. the right of the majority to criminalize practices that they consider to be immoral.
bulletThe right of a public school student to wear religious jewelry or a head covering vs. the right of a public school administration to enforce a ban on what they consider might be gang symbols or unacceptable clothing.
bulletThe right of a homosexual group to purchase a supply of customized letterhead vs. the right of the owner of a printing shop to not serve homosexual groups.

The list is endless.

Many of these conflicts relate to sexual orientation and abortion access. This is mainly because these are probably the two main topics of concern to religious and social conservatives:

bulletPro-lifers generally believe that human personhood begins at conception; thus abortion is a form of murder.
bulletPro-choicers generally believe that human personhood starts later in pregnancy or at childbirth. They oppose compulsory childbirth for every pregnant woman, and believe that women should have access to abortion if they decide that this is their least-worse option.
bulletReligious and social conservatives generally believe that homosexuality is an immoral behavior; some believe that it should once more be criminalized.
bulletMost religious and social liberals, civil rights supporter, sexual minorities, and some others regard homosexuality and bisexuality as two of three normal and natural sexual orientations. They feel that persons of all sexual orientations should be treated equally.

Conscience clauses:

These are laws and regulations that allow individuals and groups to discriminate because of their religious and/or moral beliefs. Most frequently, the term "conscience clause" is used to refer to the field of medicine where doctors, nurses, pharmacists, etc. are allowed to deny services to the public. Examples are:

bulletRefusal to give out information, or prescribe or supply, emergency contraception, oral contraceptives, or -- in those few states that permit physician assisted suicide -- lethal doses of medication;
bulletRefusal to be involved in the killing of an inmate sentenced to death;
bulletRefusal to perform an abortion or sterilization procedure;
bulletRefusal to engage in embryonic stem cell research, or,
bulletIn the future, refusal to provide a treatment that is based on research that had some past involvement with embryonic stem cells.

However, the term "conscience clause" is also used to refer to permitting discrimination outside of the medical field. Since the principles involved are identical in the two cases, we will use the more inclusive definition here.

Some examples:

bullet2005: Conflict over birth control: A very busy pharmacy in  Wal-Mart store in Wisconsin was in need of a temporary pharmacist. They accepted the recommendation of a temporary staffing agency and hired one of the agency's pharmacists. He filed a written statement with Wal-Mart, explaining that his religious convictions required him to decline any interaction with a customer that involved contraceptives. The pharmacy supervisor made special arrangements so that the pharmacist would not have to fill birth control prescriptions, handle birth control pills, perform checks on birth control orders, etc.

When the pharmacist answered a phone call dealing with contraceptives, he would place the customer on hold and not inform anyone else that there was a call waiting. When a patient came to the counter to pick up a birth control refill or seeking advice, he would simply walk away and not inform anyone else that a customer wanted assistance. The supervisor offered a compromise in which the pharmacist would not have to talk to any walk-in patients but would be required to refer phone calls dealing with contraceptives to someone else. The supervisor fired him after it became clear that he would not accept the compromise.

The pharmacist sued in federal court because he felt that his religious freedoms under the Civil Rights Act of 1964 were being compromised. The judge dismissed the complaint, ruling that he did not have jurisdiction to hear this type of complaint. He dismissed the charges against Wal-Mart because the extensive accommodation that the company offered to the pharmacist was reasonable under the circumstances.

The case was appealed to the  United States Court of Appeals for the Seventh Circuit. A three-judge panel unanimously dismissed all charges. They ruled that the Civil Rights Act does require employers to make reasonable accommodation for their employees' religious beliefs and practices, but not to the extent of creating an undue hardship.

An article by Jesse C. Vivian for the U.S. Pharmacist stated:
"... the extent to which an employer must go to accommodate religious expression is not unlimited and is never carried out to extremist measures. In this case, a pharmacy manager practically bent over backward to accommodate this pharmacist's desires to be free of any activities involving contraception. But, said the courts, there are limits on how far an employer must make those accommodations. Here, the pharmacist pushed the limits way beyond the mandates of the law when he demanded that he be protected from any inquiry, no matter how trivial, concerning any form of contraception."

"It is highly doubtful that this case would have come out any differently if the state had adopted a conscience clause. Such laws also limit accommodations to those that are reasonable under the circumstances of employment. Demands for altered work assignments that go beyond reasonable accommodation will not be forced upon employers, including those involved with health care services." 1
bullet2006: Adoption conflict: Catholic Charities of Boston, MA had been placing children in adoptive homes for over a century. In recent years, about 2% of the placements were in homes headed by same-sex couples. They found themselves in a conflict between the requirements of the law and the position of their sponsors, the Roman Catholic Church. State law forbids discrimination in the provision of services on the basis of sexual orientation. The Church condemns homosexual behavior as immoral, and requires its agencies to discriminate against adoption by same-sex couples.

In 2005-DEC, the Catholic Charities board voted unanimously to continue adoption by same-sex parents. In 2006-FEB, the four bishops in Massachusetts decided to ask the state government to have a conscience clause written into the legislation that would give them special dispensation so that they could freely discriminate against homosexuals and bisexuals. At this point, eight of the agency's 42 board members quit in protest, saying that the agency should consider all couples as potential adoptive parents, regardless of their gender makeup.

The agency decided to terminate its adoption function in mid-2006. The Boston Globe commented:
Board members of Catholic Charities said they were also deeply saddened by the news. Some members, however, expressed some relief that they no longer had to wrestle with the painful clash between gay rights and religious freedom. James Brett, a board member, said the withdrawal was approved 'with a heavy heart,' but it is preferable to a protracted battle over an exemption. ''This is a better resolution,' he said. 'It's more straightforward'." 2

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jesse C. Vivian, "The Crossroads Between Law and Ethics: Conscience Clauses," U.S. Pharmacist, 2007-AUG-20, at: http://www.uspharmacist.com/

  2. Patricia Wen, "Catholic Charities stuns state, ends adoptions. Gay issue stirred move by agency," The Boston Globe, 2006-MAR-11, at: http://www.boston.com/ 

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