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Whose Conscience?

By Paul Britner
Rev. Paul Britner is a member of the Religious Coalition for Reproductive Choice Clergy for Choice Network and serves the Unitarian Universalist Fellowship of Montgomery. The opinions expressed here are his own and do not necessarily represent those of RCRC or the congregation he serves.

Montgomery Advertiser
March 30, 2008

A bill with an appealing title is making its way through the Legislature, but citizens ever prepared to defend their rights should oppose the measure, House Bill 490. Although titled the "Health Care Rights of Conscience Act," the bill does nothing to protect the conscience of patients and threatens an important constitutional right.

Specifically, HB 490 allows health care providers, insurance companies and institutions to refuse to perform or pay for any medical services that violate their conscience and provides immunity from liability for failure to provide or pay for services in all or most circumstances. The plain intent of this bill is to limit women's choices for reproductive health care by excusing doctors, pharmacists, hospitals and insurance companies from providing or paying for an abortion or birth control.

Any analysis of such a bill must begin with the acknowledgement that no one has a constitutionally protected right to be a doctor or a pharmacist, but every woman has a constitutionally protected right to determine the course of her own pregnancy. The state may grant the privilege of providing health care services only to those the state deems fit and qualified and may limit a practice or business accordingly. The state has no similar authority, though, to regulate a woman's conscience or deprive her of a right guaranteed by the United States Constitution.

The fight over so-called "conscience clauses" has a familiar ring to it. It was only a generation ago with passage of the 1964 Civil Rights Act that we finally settled as a matter of law that providers of public services may not discriminate on the basis of race, religion, sex or national origin.

In this context, public does not mean government-provided services, but rather private entrepreneurs who serve the public. The Civil Rights Act protects a customer's right to patronize any business that holds itself out as a public establishment, regardless of whether serving certain persons offends the business owner's conscience.

In other cases, the record is mixed. Young males still have to register for the draft. Yet, in the unlikely event of a draft, the law provides that conscientious objectors to war may serve in alternate forms of community service or be assigned to non-combat roles in the armed forces. Those who object to any form of compulsory service, though, may go to jail, as Muhammad Ali famously did. Conscientious objectors to the federal income tax, however, have no alternatives. They must pay up or go to jail.

Just because a state may do something doesn't necessarily mean that it must. Do we really want to open the door for legislators to write "conscience clauses" so that favored donors may avoid the legal obligations to which the rest of us must adhere?

Despite the bill's title, it is not the health care provider's right of conscience that is at stake in these debates. No one may be compelled to become a doctor or pharmacist. What is at issue is whether someone who freely chooses to become a doctor or pharmacist and to be licensed and regulated by the state may then pick and choose which members of the public to serve.

We never would allow an applicant to the police force who happened to be a pacifist to insist that he be allowed to serve even though he refuses to carry a gun. Likewise, a doctor or pharmacist who cannot provide basic health care services to women ought to consider another field. (A homeopath, for example, is not regulated by the state.)

By his or her choosing to seek licensing and accreditation from the state, the state is vouching for a medical professional's abilities. That's a public benefit, and one for which the public rightfully may make certain demands, namely that such a professional may not discriminate based upon a patient's religious beliefs.

This is not an easy issue. It is inevitable in a diverse and pluralistic society that the interests of providers and patients may clash. Certainly, a hospital can choose not to provide maternity services. There is a big difference, though, between a medical provider known for limiting its services and a woman in crisis wondering whether the doctor on duty at a particular hospital or a pharmacist at a particular drug store happens to share her religious convictions.

The law already provides that emergency rooms must accept all patients, even if only to stabilize patients for transfer. Likewise, all medical providers must be required at a minimum to provide complete and accurate information about the medication sought, treat patients with respect, and arrange for patients to be helped by another doctor or pharmacist when there is no one else who can provide the needed services within the usual time frame.

It's hard to be against anything called a "conscience clause." Hiding a bill that would deprive women of their constitutionally protected rights behind a popular title, though, doesn't make the substance of the bill any less offensive to those who cherish their freedom. HB 490 and similar limitations on reproductive choice should be defeated.