HASSON/GOODRICH: Does Obama respect conscience?

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By Kevin Hasson and Luke Goodrich

COMMENTARY:

The Bush administration last month announced a new regulation protecting health-care providers who refuse to perform abortions or other medical procedures that violate their conscience.

Pro-choice groups have cried foul, arguing that the last-minute regulation is a politically motivated attack on a woman's right to choose and will restrict women's access to abortion and contraceptives. The incoming Obama administration has signaled it wants to repeal the rule.

That would be a mistake. Lost in the pro- and anti-abortion debate is the fact that this regulation allows a health-care provider to opt out of a procedure for one, and only one, reason - that the procedure would violate their conscience.

Protections for conscience have a long and storied history in American law, from protections for conscientious objectors in wartime, to laws that allow prison doctors to opt out of administering lethal injections. This history demonstrates a simple truth - it is wrong to force anyone to violate his or her conscience.

Liberal opponents of the regulation generally agree it is wrong to force a Quaker to go to war or force a death-penalty opponent to administer lethal injection. Why then is it fine to force an evangelical doctor to perform an abortion or a Catholic pharmacist to dispense contraceptives?

Opponents try to duck this question by arguing that conscientious objectors in the health-care context should simply find a different job - one that does not conflict with their consciences. But that argument would exclude a large swath of the population from an entire occupation solely because of their religious or moral beliefs. Such discrimination would never be acceptable on the basis of race, gender or national origin. It is no more acceptable on the basis of religion.

The "get another job" argument also ignores the fact that many health-care providers entered their field long before the practices they object to became part of the profession. Many obstetricians and gynecologists (Ob/Gyns) entered their field when assisting in an abortion was still a criminal act. Most pharmacists and medical researchers entered their fields long before Plan B contraceptives or stem-cell research became a reality. It is particularly deplorable to force these individuals out of their profession simply because new practices or technologies arose that conflict with their religious beliefs.

Opponents of the regulation also claim a right of conscientious objection in the health-care context will restrict women's access to health care - namely, abortion and contraceptives. This claim is rarely backed by any empirical evidence. When one pharmacist refuses to dispense emergency contraceptives, other pharmacists are often more than willing to do so.

But even if conscientious objection did reduce access to abortion or contraception, problems of access could be solved by various measures short of forcing health care providers to violate their conscience. Illinois, for example, requires pharmacies that do not carry emergency contraception to post a sign directing patients to other pharmacies that do. Such information-forcing measures - which can be imposed on facilities rather than individuals - are much less intrusive than forcing all pharmacies to stock emergency contraceptives or forcing all pharmacists to dispense them.

The access argument is also based on the subtle assumption that most conscientious objectors are just bluffing. That is, faced with the choice between dispensing contraceptives and being punished, most health-care practitioners will simply cave in and dispense contraceptives.

That is simply not true. Eleven Alabama nurses in 2004 resigned their positions at state health clinics rather than provide emergency contraception against their moral convictions. And they have been joined by many more.

Trampling the right of conscience, then, will not increase access to health care for anyone. Rather, it will force qualified religious individuals out of the profession, ultimately reducing access to health care for everyone who is not seeking contraception or abortion.

Finally, pro-choice activists assert that abortion should trump conscience because abortion is a constitutional right. But this assertion confuses a negative right with a positive one. That is, the constitutional right to an abortion is a right to be free from government interference in certain decisions regarding an abortion. It is not (and has never been recognized as) an affirmative right to command the assistance of others in receiving an abortion. That is especially true when commanding the assistance of others would violate their sincerely held - and constitutionally protected - religious beliefs.

President-elect Barack Obama has taken great care to reach out to people of faith, including those who did not vote for him. The choice of the Rev. Rick Warren to give the Inaugural invocation is only the most recent example. The protection of conscientious objectors in the health-care context gives Mr. Obama an opportunity to answer a question that should not be above his pay grade: Is the right to follow one's conscience fundamental or not?

Regardless of one's view on abortion, contraceptives, war or capital punishment, respecting conscience only when one agrees with you is no respect for conscience at all. Those who champion "choice" and "tolerance" should respect the conscience-based choices of those with whom they disagree.

Kevin J. "Seamus" Hasson is president of the Becket Fund for Religious Liberty, a nonpartisan, interfaith public interest law firm protecting the free exercise of all religious traditions. Luke W. Goodrich is legal counsel at the Becket Fund.