Just before they shut down the federal government this week, opponents of President Obama’s health care law attempted to tweak the thing with a one-year delay of Obamacare, a repeal of the medical-device tax, and a "conscience clause" that would have allowed employers to decline to offer their workers birth control coverage if it offended their religious or moral preferences. As Amanda Marcotte noted Tuesday, this effort reinforces the “view of the employer-employee relationship, in which apparently your boss' beliefs and views are supposed to be in the mix when you're making personal decisions about how you have sex and procreate.”
But what’s really wrong with conscience clauses? We all have consciences and laws that exist to protect us from being forced to violate our religious and ethical principles should be welcome on the left and right. The problem isn’t conscience clause legislation so much as what we might call conscience creep: a slow but systematic effort to use religious conscience claims to sidestep laws that should apply to everyone. Recalibrating who can express a right of conscience (i.e do corporations have a conscience?) and what the limits of that conscience might be, may well be the next front in the religious liberty wars being waged in courts around the country.
In the current craze to deploy conscience arguments to scuttle unpopular provisions of the Affordable Care Act, birth control is just the tip of the iceberg.
The explosion in conscience claims was kicked off by the decision in Roe v. Wade, which led to a national wave of legislation protecting those with religious objections from participating in abortions. States and the federal government rushed to promulgate conscience clauses for health care workers seeking to be exempt from providing or assisting in abortions. Passed in 1973, the Church Amendment provided that “receipt of federal funds did not require an individual or institution to perform sterilizations or abortions if it would be contrary to ... religious beliefs or moral convictions.” Since then, most states and the federal government have passed laws allowing health care providers to opt out of procedures that offend their religious convictions.
But it hasn’t stopped at health care providers, and the list of objectors now encompasses pharmacists and ambulance drivers, cashiers in supermarkets and business owners who object to same-sex marriage. Last year, for instance, a prison guard withheld an abortion pill from a prisoner who’d been raped on the grounds that it violated her personal religious beliefs. And it hasn’t stopped at abortion, birth control, or sterilization, but may include activities like counseling rape victims or teaching AIDS patients about clean needles.
Nor has the creep stopped there. In 2012 the Commonwealth of Virginia joined North Dakota in declaring it a privilege of religious freedom to allow private adoption or foster care agencies to refuse to be involved in any child placement that “would violate the agency’s written religious or moral convictions or policies.” One proponent of the legislation explained that the purpose of the conscience clause was to “chisel into law the principle that people of faith can adhere to their convictions without fear of reprisal from those who would discriminate against their religious beliefs regarding how we should raise our children.” The argument that discriminating against, for instance, same-sex or single parents in placing children in adoptive or foster homes, represents religious liberty should at least be subject to careful calibration and discussion. Religious liberty to discriminate against same sex parents has a cost, both for thousands of children awaiting adoptive homes, and for basic principles of nondiscrimination.
This past summer, Republicans in the House tried to amend the National Defense Authorization Act to "protect inappropriate, defamatory, and discriminatory speech and actions" in the military. The amendment broadened a "conscience clause" that protected the right of troops and chaplains to hold anti-gay views so long as they did not actively discriminate against gay service members.
And it’s not just health workers, and parents, and soldiers, and adoption agencies expressing a right of conscience. Some Catholic universities have argued to the National Labor Relations Board that as religious institutions they should be exempt from regulation under the Wagner Act, under which the right to organize is protected. Hearing about the Duquesne University adjunct who died last month, some readers were surprised to learn that “Duquesne had fought unionization, claiming that it should have a religious exemption. Duquesne has claimed that the unionization of adjuncts … would somehow interfere with its mission to inculcate Catholic values among its students.” The issue, again a complicated one, is whether Catholic schools can ban unions on the basis that unions would afford the NLRB jurisdiction over religious disputes. In 1979 the Supreme Court held in NLRB v. Catholic Bishop of Chicago that religious schools and colleges are exempt from NLRB jurisdiction. Adjunct faculty at small Catholic universities around the country have increasingly begun to question the wisdom of this particular expression of religious liberty.
This term the Supreme Court will most likely hear an appeal from a case in which the religious owners of a secular, for-profit corporation will defend a right of conscience in denying their secular, for-profit employees access to birth control guaranteed to them under federal law. The tensions between the religious freedom clauses and the establishment clauses of the First Amendment are vexing, intractable, and baked in. And nobody is suggesting for a moment that religious individuals should not have the right to zealously protect their religious convictions. But at bottom, the cases before the court raise questions about where conscience can possibly end, and the extent to which at least some of this explosion in conscience clause legislation represents a rear-guard action launched to regain ground lost in the culture wars.
In a thoughtful 2012 piece in the Virginia Law Review, called “Taking Conscience Seriously,” Professor Elizabeth Sepper talks about the stunning asymmetry of modern conscience protections and the ways they privilege the consciences of some over others. She notes that individual doctors seeking to exercise their right to treat patients as they see fit have their own conscience rights subsumed by the conscience rights of the hospitals and universities by whom they are employed. Sepper takes the notion of religious conscience extremely seriously. But she raises important questions about why some consciences are more important to us than others. She contends that endowing health care and other institutions with conscience rights has privileged those institutions’ rights to refuse to provide certain treatments over the rights of individual providers to give care they feel obligated by conscience to deliver. In short, she argues, there is a cost to extending conscience rights to big institutions and entities. And the cost may well be the conscience rights of the actual human people who work there.
Sepper cites a study that shows that 43 percent of physicians reported having practiced in religiously affiliated institution with refusal policies, this despite the fact that many of those health care institutions are not actually affiliated with any religion. She concludes that there is no moral or legal argument for accommodating the rights of those institutions that refuse to treat over those that seek to provide treatment. She offers several suggestions for how the law might attempt to accommodate the consciences of all, rather than just the consciences of some, carefully scrutinizing the cohesion, size, and message of the institution to identify the strength of its conscience claims.
These are some of the questions we need to be posing to ourselves as we think about the phenomenon of conscience creep. Can corporations really have consciences? Can your corporate conscience preclude you from merely paying a tax as required under the ACA? Where does the conscience of a business owner run afoul of her employees’ consciences? If conscience clauses—as expressed in statutes that allow large entities to impose their religious preferences upon smaller ones—are the vehicle by which we are going to end-run the most fundamental aspects of the social welfare state, lets at least start from the basic principle that all of us have a conscience, and take it from there.