Earlier this month, a federal judge in New York struck down a new federal regulation protecting the rights of doctors, nurses and other health care workers to decline to participate in medical procedures that violate their conscientious objections. The rule was intended to ensure that medical professionals would not be compelled to sacrifice their profession and livelihood in order to adhere to their religious beliefs and practices.
Though the regulation was struck down on purely technical grounds, its dismissal was celebrated by the plaintiffs, Planned Parenthood and others as a victory for those minorities they claimed would have been harmed by the conscience rule, including women, LGBT persons and other minorities. In reality, however, the only minority groups truly harmed by the court’s ruling are those Americans who choose to adhere to their religious principles and conscience.
American law, both legislative and judicial, has a magnificent tradition of accommodating the rights and needs of individuals with conflicting interests. Surely, such mutual accommodations should be the aspiration of regulations regarding health and medical care. Sadly, in certain contexts — such as regarding women’s reproductive rights and euthanasia — achieving a balanced approach to competing rights is not the goal of some judges and legislators who instead seek to diminish and dismiss the rights of those Americans committed to abide by their religious tenets.
This attitude is inconsistent with the fundamentals of American civil rights, including the demands of the First Amendment and the principle of “equal treatment under the law.”
Even in controversial contexts, legislators have successfully found a middle ground to provide rights to services to some individuals while simultaneously ensuring protections for those unable to provide those services on religious grounds. For example, Oregon, the first state to legalize physician-assisted suicide, codified this balance in its “Death with Dignity Act” with a provision stating that “no health care provider shall be under any duty … to participate in the provision … of medication to end [a person’s] life …” Each of the other nine states in which assisted suicide is legal have similarly provided hospitals and their medical staff the right to decline participation.
Unfortunately, despite Oregon and other states effectively employing such balance, respect for the conscience rights of heath care providers (and other Americans of faith) has been persistently attacked. The denigration and dismissal of religious belief is frequently advanced in association with both abortion and LGBT rights. Rather than seeking to ensure that these legal rights are balanced with the competing, authentic religious rights of others, many abortion and LGBT advocates frame values borne of religion as illegitimate and undeserving of respect, let alone entitled to legal protection. They assert that any accommodation of religious belief is tantamount to using religion as “a sword” to harm others.
Experience has now shown that the preservation of religious conscience protections need not impose significant burdens on others. This has not only been true in the context of assisted suicide, but a similar balance is employed in many states with regard to ensuring access to various forms of women’s health care. The laws of numerous states, from New York to Nevada, allow pharmacists, nurses and other health care providers to have their conscience objections respected while balancing these provisions with others that ensure patients have access to all the treatment or medication to which they are legally entitled. Admittedly, the laws of certain states favor exclusively the rights of only the provider or the patient. The states that have a balanced approach, however, have proven that protecting competing legal rights need not be a zero-sum game.
Our courts and our culture must be reminded that America was founded by those who were seeking religious freedom; that is why they enshrined its protection in the First Amendment. A devout Jewish doctor who declines to issue an assisted-suicide prescription shouldn’t be forced to choose between her career and conscience any more than a faithful Catholic attorney who doesn’t want to work on a death penalty case, or a committed feminist web designer who doesn’t want to build a pornographic website.
Mutual respect is the cornerstone of civil society. It is imperative that as Americans we recognize that a profound respect for religious conscience is essential to such civility.
• Moishe Bane is president, and Nathan Diament is executive director of public policy, of the Union of Orthodox Jewish Congregations of America.