Issues in Depth
-Legal Commentaries-
 

Wardle Biography

Wardle Testimony
 Re: ANDA

I. Introduction: Conscience or Coercion?

Profound moral issues going to the heart of individual religious beliefs and moral conscience are arising in many aspects of health care. These include issues concerning the provision or assisting the provision of many procedures, medications, and materials, including elective surgical abortion, provision of pharmaceutical abortifacients and hybrid contraceptive-abortifacients (medications that may operate to prevent conception and to prevent implantation of a conceived human pre-embryo, assisted reproductive techniques for same-sex couples, sex change procedures and therapies, assisted suicide, euthanasia, sterilization and other provision of other birth control procedures, pharmaceuticals, materials, and equipment, cloning, pre-natal human experimentation, stem cell research, harvesting of fetal and other organs and tissue, organ transplantation, professional education (including medical, nursing, pharmaceutical, etc.), and inter-species breeding, to mention just a few.

These issues have long engaged the concerns of bioethicists, theologians, and law professors;² they have recently become subjects of interest of legislators, other policy-makers, judges, and journalists, as well. According to the National Conference of State Legislatures, one of the top ten issues that will come before state legislatures this year (2006) relates to rights of conscience in the biomedical field – stem cell experimentation and research.

Last year, states considered more than 170 bills on embryonic and adult stem cell research. More than a dozen states will carry over legislation, and others will consider new bills. Should embryonic stem cell research be legal? Should state funds support it? Should the state fund adult stem cell research instead? These are questions lawmakers will contemplate in 2006.³

Regularly, sometimes daily, the media blare stories about shocking abuses of the rights of conscience of individuals and groups of individuals in the health care field who are coerced to act against their religious and moral standards. Equally often, the media shouts about sympathetic cases in which health care services or medications are denied by persons and institutions with conscientious objections. It seems that it is both the best of times and the worst of times from either perspective.
Historically the lure of significant amounts of money has often created pressures upon individual exercise of rights of conscience, and the potential profits, research funds and medical revenue dollars access to which may be impeded to some extent exercise of rights of conscience are substantial.⁴

It is possible to reconcile the competing interests. It is not possible to do so without giving priority to preserving and protecting the exercise of religious beliefs and conscience. The sacrifice individual religious principles and personal rights of conscience for an assumed expedient in patient autonomy undermine the moral basis for the very objective they seek to secure. Such expediency impoverishes and demeans not only the individual health care providers specifically and the medical profession generally, but it weakens the very foundations of our constitutional order. We cannot survive as a Constitutional republic without constantly protecting the rights of conscience of all citizens.

II. Last Rites: Growing Attacks on Exercise of Rights of Conscience in Health Care

Increasingly, persons committed to public health goals involving the use of medial procedures, medications, programs that raises issues of religious conscience and morality for religious minorities in America are trying to use law as a tool to coerce health care provides (individuals and institutions) to facilitate controversial public health care objectives. Increasingly, they have sought to enact legal mandates to compel all persons and institutions to comply with their vision of the “good” of society - such as mandatory provision of abortion services, mandatory provision of hybrid contraceptive-abortifacients, mandatory provision of insurance coverage for contraceptives and abortion, mandatory cooperation in withdrawl of medically-assisted nutrition and hydration, mandatory cooperation in assisted suicide, mandatory cooperation in euthanasia, and a variety of other government mandates.

At least twenty states requires employer health insurance to include coverage of contraceptives; seven of these (nearly one-third) allow no exemption or only a very narrow exemption that does not include church-owned-and-operated agencies set up to perform religious missions such as caring for the sick, feeding the poor, serving the homeless, fatherless, victims of domestic violence, and orphans.⁵ California’s notorious mandate that all employers providing health care insurance include coverage for contraceptive services and materials which created a terrific bind of Catholic Charities (with a narrow exception for churches but not church agencies) is perhaps the most well-known example^.6

At least eight states now require hospitals to provide hybrid contraceptive-abortifacients to victims of sexual assault.⁷ Bills with similar mandates were introduces in more than a dozen states last year. Just last month, in December 2005, Massachusetts Governor Mitt Romney threw in the towel and withdrew his support for an apparently futile attempt to pass a bill that would have exempted private hospitals from mandatory provision of new Massachusetts law requiring hospital emergency rooms to offer the morning-after pill (a hybrid contraceptive-abortifacient) to victims of rape, and overruled a state department of public health ruling a week earlier that private hospitals were exempt from the new law.⁸ Romney, who just five month earlier had vetoed the bill, before the legislature over-rode his veto, ordered all hospitals, even private hospitals, to comply with the new law mandating provision of emergency hybrid contraceptive-abortifacients, to which many Catholic health care providers have religious objection.⁹

Pharmacists also have been the center of attempts to override conscientious objection. According to the National Conference of State Legislatures,¹⁰ in 2005 legislation was proposed in four states (California, Missouri, New Jersey, and West Virginia) to compel pharmacists to fill prescriptions including for hybrid contraceptive/abortifacients.¹¹ In April 2005, Illinois Governor Rod Blagojevich issued an emergency administrative order requiring all licensed pharmacists in the state to fill prescriptions for contraceptives, including hybrid contraceptive-abortifacients.¹² A few months later, Walgreens placed four Illinois pharmacists on leave for refusing on religious and moral grounds to fill prescriptions for the morning-after pill, a hybrid contraceptive-abortifacient.¹³

Also in April 2005, Senator Frank Lautenberg, D-N.J., and Rep. Carolyn Maloney, D-N.Y., “introduced federal legislation, called the Access to Legal Pharmaceuticals Act, that would require pharmacies to fill all valid prescriptions in a timely manner.”¹⁴

This summer, delegates at the American Medical Association annual meeting “adopted a resolution saying that responsibility to the patient is ‘paramount’ and seeking authority to dispense drugs to their own patients if an agreeable pharmacist cannot be found within a 30-mile radius.¹⁵

Likewise, at the Midyear Meeting of the American Bar Association in February, 2005, the ABA House of Delegates approved a resolution expressing opposition to any government action or policies that interfere with a patient's ability to receive “all of the relevant and medically accurate information necessary for fully informed health care decision-making.”¹⁶

Throughout North America, nurses report have being required and coerced to participate in abortions and sterilizations, despite their religious objections to doing so. For example, “[a]fter ten years on the job, nurse Janice Turner, who refused to dispense the potentially abortifacient 'morning-after pill', was fired because a new supervisor believed that she was not a ‘complete nurse.’”¹⁷ In 2003, an attorney (Frank Manion) with a public interest law firm specializing in defense of religious freedom (the American Center for Law and Justice) reported that the number of calls his organization received about right-of-conscience issues had escalated from about one call every two months in 2000 to one call per week in 2003.¹⁸ “Most of the calls are from nurses, who usually don't have the professional independence and status enjoyed by physicians.”¹⁹ As one Nurse wrote in 2003:

Intimidation, harassment and coercion are becoming increasingly common as pro-life health care providers try to advocate for both their patients and their professional ethics. For example, a nurse was threatened with firing after she refused to follow a doctor's verbal order to increase an intravenous morphine drip “until he stops breathing” on a patient who continued to survive despite having a ventilator removed. . . . Three California nurses were suspended after they reported a doctor who later admitted giving a lethal injection to a child.²⁰

There have been numerous public incidents in Canada involving the coercion of nurses to perform abortions over their religious objections.²¹ Hospital reorganizations or acquisitions resulting in changed corporate policies have often created such pressures.²²
Sometimes doctors are also pressured. An OB/GYN physician was told by other doctors that they would no longer refer patients to him if he continued to sign an annual pro-life ad. An insurance company executive speaking on ethics committees at a conference recommended that such committees avoid appointing “family values” members.²³ One ethicist has noted that “[i]t has already been seriously suggested that Catholic physicians should not become maternal child specialists, since they cannot in good conscience, provide the whole range of reproductive, pregnancy, and neonatal ‘services,’ such as selective abortion . . . or late-term abortions.”²⁴

Institutionally, hospital expansions, mergers, sales, and acquisitions in many cases have been opposed, defeated or made subject to conditions that abortion and other morally controversial services be provided. Indeed, there are organizations and websited dedicated to forcing health care institutions to facilitate abortion through governmental administrative regulation of institutional development, corporate change, merger and transfer of ownership, and certificate of need.

The attack on rights of conscience is reflected in the attempt by advocates of compulsory provision by all health care providers of various controversial services and products to re-label “conscience clauses” as “refusal clauses.”²⁵ The success of that effort is reflected in the fact that even the ostensibly bi-partisan National Conference of State Legislatures uses that terminology in its website.²⁶

Ironically, the positions taken by academics (who demand academic freedom) often are among the most rigid and intolerant (perhaps this is because they are so abstractly intellectualized, suggesting higher valuation of the intellectual over other aspects of the human and personal experience). Increasingly, legal commentators are forcefully arguing that state conscience (“refusal”) clauses “fail the undue burden test by presenting a substantial obstacle for women seeking mifepristone or E[mergency] C[ontraception], particularly if the patient is in a rural area with few or no alternatives.”²⁷

What Abraham Lincoln said nearly 150 years about about defenders of slavery could be said of abortion promoters who work to deny rights of conscience to health care professionals today. Lincoln, at Coopers Union, answered the question of what it would take to satisfy the pro-slavery forces. He said:

Cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly, in acts, as well as in words. Silence will not be tolerated. We must place ourselves avowedly with them. The whole atmosphere must be disinfected from the taint of opposition to slavery before they will cease to believe that all of their troubles proceed from us.²⁸

III. First Rights: The Legal Foundations for Protection of Conscience

A. Recent Statutory Protection for Rights of Conscience of Health Care Providers
The other side of the coin, the “best of times” side of the story, is that both Congress and nearly all American states have enacted statutory protection for the exercise of rights of conscience by at least some health care providers in at least some circumstances; only between two and seven states have no “conscience clause” legislation, depending on how that term is defined and what or who is covered. ²⁹ The Alan Guttmacher Institute reported several years ago that over half of the state conscience clauses allowed any health care institution to invoke the conscience clause, over one-third allowed any private institution to do so, and only one state limited institutional rights of conscience to religiously-affiliated health care institutions.³⁰

Just over one year ago, in December 2004, Congress passed and President Bush signed the Weldon Amendment, which prohibits federal, state, and local governments and agencies from requiring any health care professional or institution to provide or pay for abortions or supply abortion-related referrals.³¹ It also prohibits national, state, and local government officials from withholding tax monies from any health care provider that refuses to provide or pay for abortions or offer abortion counseling or referrals.³²

Lawmakers in four states (Arkansas, Georgia, Mississippi, and South Dakota) have adopted legislation specifically to protect the rights of pharmacists to refuse to dispense emergency contraceptives or abortifacients,³³ and in 2005 legislation was introduced in thirteen states to protect the rights of conscience of pharmacists,³⁴ and in three additional states bills protecting the rights of conscience of health care provider in general were proposed in the legislature.³⁵ In at least 20 states, pharmacists are said to be protected under general conscience clauses.³⁶ (That, of course, is the heart of the controversy in Illinois involving Governor Blagojevich’s deceptively labeled “Emergency Contraception” Executive Order which compels pharmacists (but not, of course, doctors) to use their professional skills to facilitate actual or possible early abortions.

B. Protection for Conscience As A Fundamental Constitutional Right
The powerful influence of respect for rights of conscience on the Founders of the American Constitution is well-documented.³⁷ It was not only a cornerstone of constitutional ideology, but protection of rights of conscience was embraced more vigorously and more comprehensively than it had been in Europe.

In America in the late eighteenth century, two different views about matters of conscience and religion were competing.³⁸ One view, with a high and honorable heritage traceable rhetorically to Locke’s famous essay, A Letter Concerning Toleration, viewed accommodation of religious differences to be a matter of utilitarian toleration, or political accommodation.³⁹ In some of his early writing, at least, Thomas Jefferson advocated this approach. Respect matters of conscience and religion was a matter of toleration – sound public policy, good neighborliness and good politics. As Jefferson wrote in his draft of the Virginia Bill for Establishing Religious Freedom:

Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether unsusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion.⁴⁰

From this perspective, liberty of conscience should be respected to avoid “hypocrisy and meanness.”

On the other hand, James Madison spoke of matters of conscience and religion not merely as toleration but as fundamental, natural rights.⁴¹ It makes a big difference whether respect for another’s moral convictions is given simply as a matter of tolerance (to be suspended when outweighed by other political considerations, for example, in time of emergency), or whether that is a matter of your neighbor’s basic civil rights. Fortunately, the Founders ultimately concluded that protection for conscience was a matter of fundamental right. Early colonial charters and state constitutions spoke of it as a right.⁴² The Virginia Declaration of Rights was initially drafted to guarantee “fullest toleration” of religion; but Madison amended it and when it passed, it provided that “all men are entitled to the full and free exercise of [religion] according to the dictates of conscience.” Madison’s Memorial and Remonstrance expressed the language of rights, not toleration: “The equal right of every citizen to the free exercise of his Religion according to the dictates of conscience is held by the same tenure with all our other rights.”⁴³ He explained:

The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. . . . It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.⁴⁴

Madison saw the individual’s right of conscience tied to and derive from his pre-existing and superior duty to God.⁴⁵

In Federalist No. 10 Madison further acknowledged that one way to prevent the abusive influence of “factions” in government would be “by giving to every citizen the same opinions, the same passions, and the same interest.”⁴⁶ But he summarily rejected this solution as both unwise and impractical because he considered “[t]he protection” of such “diversity” of “faculties,” “interests,’ and “views” to be “the first object of government . . . .”⁴⁷ The primary, principal, premiere duty of government in Madison’s view is to protect not only the difference in talents, interests and abilities that produce differences in wealth, education and influence, but also to protect the different “sentiments and views of the respective proprietors [that] ensures a division of the society into different interests and parties.”⁴⁸ He also noted that “liberty” which produces factions “is to faction what air is to fire . . . .”⁴⁹ but to eliminate liberty in order to control faction would be a “remedy that . . . was worse than the disease.”⁵⁰

Not surprisingly, the toleration-as-policy approach gave way to and was superceded by protection-of-conscience-as-a-fundamental-right.⁵¹ (Ironically, some courts and most commentators today have slipped into using the language of toleration and accommodation. It is time for us to reassert emphatically the language of rights.)

Protection for rights of conscience underlie and historically preceded the First Amendment.⁵² The Founding generation was a generation of active religious faith,⁵³ and Revolutionary War spurred the quest for protection of rights of conscience in several ways. In June, 1776, even before the Declaration of Independence, the Virginia Declaration of Rights provided, inter alia, that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience . . . .” ⁵⁴ During the War of Independence, rather than suspend respect for divergent moral views, many states granted exemptions from conscription to persons with religious scruples against war, such as Quakers and Mennonites.⁵⁵ In 1775, the Continental Congress granted a general exemption from military conscription to religious groups.⁵⁶ Also, the main established church in America (Anglican) which had opposed rights of conscience was associated with the oppressive enemy, and the break with England enhanced the status of the fiercely patriotic dissenting religious communities who advocated protection for their rights of religious conscience, such as the Baptists.⁵⁷ After centuries of government support for the state church in Virginia, the Baptists led a petition campaign demanding that “every tax upon conscience . . . be abolished.”⁵⁸ In 1779, Thomas Jefferson introduced his Bill for Establishing Religious Freedom in the Virginia Legislature (House of Burgesses). It declared that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”⁵⁹ (If Jefferson thought that about merely funding things against one’s will, one can imagine what he would say about being compelled to perform acts or provide products or procedures like abortion or the MAP against one’s conscience.) Jefferson’s Bill did not pass for over six years, but in December, 1785, while Jefferson was Minister to France, James Madison engineered passage of Jefferson’s Bill. As finally enacted it declared that “no man shall be . . . molested or burdened in his body or his good, nor shall otherwise suffer on account of his religious opinions or belief . . . and that the same shall in no wise diminish, enlarge or effect their civil capacity.”⁶⁰ Thus, it provided expansive protection for rights of religious conscience.
Professor John Witte concurs that at the time of the Founding of the America freedom of conscience guaranteed “a freedom and exemption from human impositions and legal restraints in matters of religion and conscience,”⁶¹ and that it required that persons be exempt or immune from civil duties and restrictions that they could not, in good conscience, accept or obey.⁶² Professor Michael W. McConnell noted that before the Constitution was adopted, every state except Connecticut had adopted state constitutional protection for rights of religious exercise “in terms of the conscience of the individual believer and the actions that flow from that conscience.”⁶³

Moreover, protection of rights of conscience is deeply rooted in and intertwined with the fundamental First Amendment rights guaranteeing free exercise of religion and no establishment of religion.⁶⁴ Of course, the best example is the protection of conscience as a right is inclusion of the right to free exercise of religion in the First Amendment of the Bill of Rights.⁶⁵ While there is room for debate over the degree to which the “free exercise” of religion clause of the First Amendment protects rights of conscience,⁶⁶ it is clear that
[t]he phrase “liberty of conscience” was often conflated with the phrase “free exercise of religion,” “religious freedom,” “religious liberty,” “religious privileges,” or “religious rights.” James Madison, for example, simply rolled into one linguistic heap “religious freedom” or “the free exercise of religion according to the dictates of conscience.”⁶⁷

Indeed, the state “conciliatory amendments” (ratifying the Constitution but asking that it be amended to explicitly protect certain fundamental rights) which led to the drafting of the First Amendment expressly asked for “rights of conscience” to be protected in the Bill of Rights.⁶⁸ That is the purpose for which the religion clauses of the First Amendment were drafted.

Even the Establishment Clause was intended to protect rights of conscience. Noah Feldman’s recent scholarship challenges the conventional wisdom about the reasons for the Establishment Clause of the Constitution (i.e., that rationalists thought it bad for the state, religionists thought it bad for churches, though republicans generally believed civic virtue essential and looked to religion to cultivate virtue).⁶⁹ Instead he makes a strong case that the Lockean value of “[l]iberty of conscience . . . was the central value invoked by the states that proposed constitutional amendments on the question of religion, and the purpose that underlay the Establishment Clause when it was enacted.”⁷⁰ He shows that “by the late eighteenth century, American rationalists and evangelicals alike argued, in terms identifiably derived from Locke, that the purpose of nonestablishment was to protect the liberty of conscience of religious dissenters from the coercive power of government.”⁷¹ Despite earlier differences in ideology and policy among the communities and colonies, “by the late eighteenth century it was broadly agreed in the colonies that there was a basic, indeed natural, right called liberty of conscience.”⁷² “[O]n the eve of the Constitution” regardless of religious or ideological faction, Americans all “shared a basic theory of religious liberty and drew on the same sources and Lockean ideas to express their views.”⁷³ From 1787, when the Constitution was proposed, to 1789 when the Bill of Rights was proposed by the First Congress, “the predominant, not to say exclusive, argument against established churches was that they had the potential to violate liberty of conscience.”⁷⁴ The Virginia ratifying convention proposed an amendment to the Constitution linking protection of conscience directly to non-establishment:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force of violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect of society ought to be favored or establish, by law, in preference to others.⁷⁵

Likewise, multiple drafts of the First Amendment in Congress reflected the linkage between conscience, freedom of religion, and establishment.⁷⁶ While the term “conscience” was dropped from the final version of the First Amendment, the inclusion of free exercise of religion and no establishment of religion together “were thought to cover all the ground required to protect the liberty of conscience,”⁷⁷ and the theoretical basis for both religion clauses in protection of rights of conscience remained “even after the world “conscience” disappeared from the draft language.”⁷⁸ There was “broad agreement that liberty of conscience was a basic, inalienable right,” and “[l]iberty of conscience was the basic principle that underlay the arguments for nonestablishment at the federal level.”⁷⁹ Other scholars agree that the ultimate dropping of the term “conscience” from the First Amendment resulted from “later revisions [that] were revisions only of language which all agreed carried out the [intent to protect religious conscience].”⁸⁰ Professor Feldman’s work places liberty of conscience at the core of First Amendment jurisprudence (Establishment Clause especially).⁸¹ “[K]nowing how these ideas got their start in our constitutional context makes all the difference in the world.”⁸²

Michael McConnell has made a strong case that the Founders specifically intended to give religious conscience more constitutional protection that rights of conscience generally. Noting that protection for “conscience” was the language proposed in the initial drafts of the First Amendment, but Congress ended up adopting language that protected free exercise of religion only, McConnell acknowledges that the terms were sometimes used interchangeably and that the First Amendment could be read to grant constitutional protection to both religious conscience and secular conscience as well. “The reference to conscience [in earlier drafts of the First Amendment] could have been dropped because it was redundant, or it could have been dropped because the framers chose to confine the protections of the free exercise clause to religion.”⁸³

At the very least, “the vast preponderance of references to ‘liberty of conscience’ in America were either expressly or impliedly limited to religious conscience. . . . Madison himself used the terms ‘free exercise of religion’ and ‘liberty of conscience’ interchangeably when explaining the meaning of the first amendment. The laws of at least ten of the states expressly linked ‘liberty of conscience’ to religion.”⁸⁴
However, the language and history can just as easily, and in context more convincing, be read to suggest that the language was intended to protect explicitly and specifically religious conscience, not not necessarily non-religious conscientious objection. Judge McConnell suggests that the phrase ‘free exercise of religion’ was deliberately used in order to exclude nonreligious conscience seems more likely, since the different drafts called attention to the question.”

During the Founding generation, “the freedom of religion was almost universally understood (with Jefferson being the prominent exception) to include conduct as well as belief.”⁸⁵ One “important difference between the terms ‘conscience’ and ‘religion’ is that ‘conscience’ emphasizes individual judgment, while ‘religion’ also encompasses the corporate or institutional aspects of religious belief.” Another difference between the terms “free exercise of religion” (adopted in the First Amendment) and “rights of conscience” (used in drafts and debates) ’ is that the latter might seem to extend to claims of conscience based on something other than religion -- to belief systems based on science, history, economics, political ideology, or secular moral philosophy. By deleting references to ‘conscience,’ the final version of the first amendment singles out religion for special treatment.”⁸⁶ Even critics of religious exemptions admit that “[b]oth before and after the adoption of constitutions guaranteeing the free exercise of religion, legislative and constitutional documents (including charters) granted exemptions from particular obligations, such as oaths, conscription, and assessments.”⁸⁷

There is a powerful conceptual basis for distinguishing between secular and religious conscience that was very important in the political ideology of the Founding era. “Conflicts arising from religious convictions were conceived not as a clash between the judgment of the individual and of the state, but as a conflict between earthly and spiritual sovereigns. The believer was not seen as the instigator of the conflict; the believer was simply caught between the inconsistent demands of two rightful authorities, through no fault of his own.”⁸⁸
Madison’s rights approach reflects Locke’s view of priority in dual loyalty.

“Not only were the spiritual and earthly authorities envisioned as independent, but in the nature of things the spiritual authorities had a superior claim. ‘[O]bedience is due in the first place to God, and afterwards to the laws,’ according to Locke.”⁸⁹

As Professor (now Judge) McConnell explained:

[T]he free exercise of religion is set apart from mere exercise of human judgment by the fact that the “source of value” is prior and superior to both the individual and the civil society. The freedom of religion is unalienable because it is a duty to God and not a privilege of the individual. The free exercise clause accords a special, protected status to religious conscience not because religious judgments are better, truer, or more likely to be moral than nonreligious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual's control.⁹⁰

Thus, the Founders understood that human governments and governors have “no authority to coerce individuals on account of religious opinion, for in this sphere they can have no basis for action other than “their own belief, their own persuasion,” which is as likely to support the false as the true religion. As Madison observed, “that the Civil Magistrate is a competent Judge of Religious truth . . . is an arrogant pretension.”⁹¹

Thus, “when the individual's judgment is grounded in beliefs outside the ken of government ... the government [is] required to defer.”⁹² On the other hand, moral judgments that “do not stem from obedience to a transcendent authority prior to and beyond the authority of civil government, . . . do not receive exemption under the free exercise clause.”⁹³

Significantly, the First Amendment language suggests a constitutional basis for recognition of exemption for rights of religious conscience in at least some circumstances. The language “‘free exercise’ makes clear that the clause protects religiously motivated conduct as well as belief.”⁹⁴ “As defined by dictionaries at the time of the framing, the word ‘exercise’ strongly connoted action.”⁹⁵ Against the background of protection of some but not all religous faiths and conscience,⁹⁶ the First Amendment protection of the exercise of all religious conscience was fully-inclusive and completely non-exclusionary.

The principle of liberty of conscience underlay the notion of a self-governing republic. Thus, when an effort to revive the religion tax in Virginia was made after the War of Independence, James Madison drafted his famous Memorial and Remonstrance declaring that certain things like religious duties “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”⁹⁷ He explained why in terms that underscore the foundational nature of rights of conscience:

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of a Civil Society, who enters into any subordinate Association, must always do it with reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.⁹⁸

Here Madison brilliantly linked the moral tradition of toleration traceable to John Locke with the basic human rights tradition which had blossomed and evolved powerfully in America, especially since the Declaration of Independence. Madison clearly understood that if men are not loyal to themselves, to their conscience, to their God and their moral duty as they see it, it is utterly irrational folly to expect them to be loyal to less compelling moral obligations of legal rules, statutes, judicial orders, or the claims of citizenship and civic virtue, much less professional duties.⁹⁹ If you demand that a man betray his conscience, you have eliminated the only moral basis for his fidelity to the rule of law, and have destroyed the foundation for all civic virtue¹⁰⁰

C. Conscience and Republican “Virtue” Necessary to Sustain a Republic
In pragmatic terms, we today know that it is impossible to enforce all the laws at all times. We see about us, especially in new democracies and third-world countries, the attempt to have democratic government in societies without a tradition of civic virtue. If the basis of obedience to law is fear of punishment, fear of getting caught, fear of police and prisons, the legal system will be at best a “banana republic” in which laws are routinely disregarded, executive enforcement is abused, and law makers are corrupted. Only a small percentage of the people will obey the laws, and then only when the police are looking.

In more robust terms, the Founders of all persuasions understood that requiring men to violate and disregard their conscience resulted in the loss of virtue, which undermined the basis for self-government.¹⁰¹ Most of the political traditions the Founders consulted emphasized that no self-governing republic could exist without a high degree of virtue in the citizenry.¹⁰² Thus, the founders of the American Constitution were convinced that virtue in the citizenry was absolutely essential, indispensable for this system of government to function and survive. A few quotes from the Founders makes this point.

George Washington famously noted: “Tis substantially true, that virtue or morality is a necessary spring of popular government. -- The rule indeed extends with more or less force to every species of Free Government.-- Who then is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?”¹⁰³

Samuel Adams agreed that “neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt.”¹⁰⁴

Benjamin Franklin, in the Constitution Convention of 1787, voiced his concern that although the new government would likely “be well administered for a course of years,” it would “end in Despotism, as other forms have done before it, when the people have become so corrupted as to need some despotic Government, being incapable of any other.” On another occasion, he said: “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”¹⁰⁵

James Madison told delegates to Virginia’s ratifying convention: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”¹⁰⁶ He also wrote in Federalist No. 57: “The aim of every political Constitution is or ought to be first to obtain for rules men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

John Adams clearly warned: “Out constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”¹⁰⁷ He also said: “Liberty can no more exist without virtue and independence than the body can live and move without a soul.”¹⁰⁸

Edmund Burke, the English contemporary of and sympathizer with the American Founders, may have explained it best when he wrote:
Men are qualified for civil liberty in exact proportion to their disposition to put moral chains on their own appetites; in proportion as their love of justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the councils of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon the will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.¹⁰⁹

Thus, the political philosophy of the Founding directly linked virtue with republication (self-) government; if the constitutional republic was to survive, virtue had to be cultivated in the populace; and if virtue was to be cultivated, individual conscience had to be nurtured and protected. Protection of the rights of conscience went to the core of the Constitution. To citizens of the young American republic, protection for rights of conscience, including tolerance accommodation of acts and exercises which were controversial, even inconvenient, and sometimes generally disfavored, was the genius of the American peace and prosperity.

Like a beacon on a rock, this American principle of postcolonial religious liberty was established to be a light and guide to all the world. To William Sampson [an enthusiastic reporter of the first Free Exercise case in the new United States], it seemed “as if providence had decreed this land, to be the grave of persecution, and the cradle of tolerance.” If anybody could not see the wisdom of this enactment, said Sampson, “let him open the page of history, and read of the bloody religious wars of Europe, of which the wounds are still fresh and bleeding. Let him reflect who his own fathers were, and he will find the cogency and wisdom of the act.”¹¹⁰

IV. Conclusion: First Rights or Last Rights - The Choice

Professor Nora O’Callaghan has called this the “lessons from Pharaoh and the Hebrew midwives.”¹¹¹ As most educated people know from the story of Moses, Pharaoh summoned the two Hebrew midwives who delivered Hebrew babies and told them to let the girl babies live, but ordered that if a Hebrew mother gave birth to a son, “then ye shall kill him.”¹¹² “But the midwives feared God, and did not as the king of Egypt commanded them, but saved the men children alive.”¹¹³ The question, of course, is whether the Hebrew midwives were justified in violating the law of Pharaoh to follow their consciences. Are modern midwives and nurses, doctors and hospitals, pharmacists, and other health care providers entitled to follow their consciences when compelled by the law to engage in behavior they consider to be contrary to the commands of God as they understand them?

Fortunately, it is not impossible to protect both rights of conscience and rights of patients to controversial medical procedures, therapies, and medications. For example, the American Pharmaceutial Association adopted a balanced policy in 1998 that includes protecting the rights of conscience of pharmacists and also supports the establishment of “a system to ensure patient access to legally prescribed therapy without compromising the pharamcists right of conscientious refusal,” such as toll-free telephone access to information about pharmacies and pharmacists who will fill controversial prescriptions that may violate the rights of conscience of some other pharmacists.¹¹⁴ Such a toll-free referral system has been operating successfully in Washington state.¹¹⁵ As American history has long shown, most recently and obviously in the Title VII accommodation cases, when encouraged to accommodate rights of religious conscience, it almost always is possible to protect rights of conscience and also to achieve other legitimate health or business policy objectives. And as a few incidents in American history also have shown, when greed or impatience or intolerance override accommodation or religious conscience, invariably abuse and tyranny and shame and failure and regret are the eventual results.

Accommodation of rights of conscience takes a little more time, effort and creativity. The inconvenience factor may be one reason why profit-driven or cost-conscious health care institutions and organizations are impatient with efforts to protect rights of conscience. But in the long run, it takes less time and expense than the diversion and expense of litigation, efforts to circumvent, and deep resentment which denial of rights of conscience inevitably produce.

We must be vigilant to protect rights of conscience for it is the foundation of our constitutional order. It comes down to a very clear and straight-forward choice: protect rights of conscience as “first rights” or accept the “last rites” of constitutional democracy – the disintegration and demise of our Constitution and the liberties it protects.
I urge the American Health Lawyers Association and its members to clearly and firmly stand up to protect the rights of conscience of health care providers.

To conclude in the words of James Madison, from his Essay on “Property”:

“ Conscience is the most sacred of all property . . . . To guard a man's house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man's conscience which is more sacred than his castle . . . .”