Review of Protecting the Rights of Conscience of Health Care
Lynn D. Wardle, J.D, Professor of Law, J. Reuben Clark Law School,
Brigham Young University. The Journal of Legal Medicine, 14:177-230,
In 1993 Professor Lynn Wardle published a detailed survey of what he
called the "patchwork" of American protection of conscience laws (Wardle
226). The article not only addressed numerous relevant issues, but included
extensive citations of American case law and statutes. While it is a
particularly valuable resource for U.S. researchers, a number of his
observations and arguments have more general application.
Inadequacy of U.S. Laws
Professor Wardle described existing U.S. legislation as "obviously and
profoundly inadequate" (Wardle 210). Having been drafted primarily to deal
with the aftermath of Roe vs Wade (180), the statutes addressed only
a few procedures (chiefly abortion), often provided protection to only some
individuals or classes of persons, and failed to include mechanisms for
remedy or redress (178).
Moreover, he observed that "serious moral conflicts are sometimes brushed
aside or cavalierly disregarded" by hostile judges bent on "imposing their
own moral preferences" upon health care workers and institutions (221).
Alternatively, some judges ruled so as to completely subordinate the rights
of health care providers to "the wishes and convenience of their patients
and their patients' families", a precedent that would cause health care
licenses to become "lttle more than badges of moral slavery." (214)
Existing and Projected Abuses
Compounding the lack of legal protection afforded vulnerable religious
minorities, Wardle cited reported cases - "only the tip of the iceberg"
(220) - as evidence that "significant numbers of health care providers are
subject to direct and indirect coercion and mistreatment" (178). These
experiences included "threats, harassment, transfer, demotion and firing of
nurses," civil liability imposed upon conscientious objectors, and
government orders to carry out directives to withdraw food and fluids from
dependent patients (219-220).
Wardle forecast even more serious and widespread violations of conscience
as a result of pressure at both ends of life's continuum. On the one hand,
he noted attempts by pro-abortionists to make participation in abortion
mandatory for medical students (221-222. See also Frank, Michael J.,
Safeguarding the Consciences of Hospitals and Health Care Personnel: How the
Graduate Medical Education Guidelines Demonstrate a Continued Need for
Protective Jurisprudence and Legislation. Saint Louis University Law
Journal, Vol. 41 No. 1, Winter, 1996). On the other, he worried that the
increased medical costs associated with an aging population would generate
pressure on health care workers to assist in euthanasia (222-223).
Further, he postulated that growing religious and cultural diversity in
the U.S. would increase the potential for a "conflict of moralities". He
pointed out, for example, that some religious minorities object to
autopsies, organ transplants and blood transfusions, and asserted that "no
rational justification" existed for excluding these and other widely
accepted procedures from the ambit of conscience legislation (181).
New Technologies and Policies
While he expressed concern that federal health care reforms might destroy
what legal protection existed at the the state level (223-226), Wardle was
also cognizant of the difficulties that might arise due to emerging
reproductive and genetic technologies (181 n.16). Since that time the
situation has become further complicated by the marketing of new drugs and
the lobby for physician assisted suicide. Significant ethical problems have
arisen in each area since the publication of Wardle's review, and it is
unlikely that the problems will diminish with the passage of time.
Institutional and Individual Protection
Professor Wardle criticized the policy of extending conscience protection
to individuals while denying it to health care institutions. The latter, he
argued, exist to actualize the "will and purposes" of the former (186). To
protect the individual but not the collective is, he asserted, like granting
freedom of speech to individuals, one-to-one, while denying freedom to forms
of "collective speech" like that of corporations, television or newspapers
(187). He observed, with some irony, that "[t]he greatest opposition to laws
protecting the rights of conscience of health care institutions has come
from advocates of absolute reproductive choice." (186)
State and Private Institutions
A further inconsistency he noted was the practice of denying legal
protection of conscience in state institutions while granting such
protection in private ones (188). Adopting the 'values language'
characteristic of much modern ethical discourse, the Professor explained
this as the result of "a conflict of values". The state, while 'valuing'
provision of a controversial service, also 'valued' the rights of health
care workers to refuse to provide the service. The solution to this
conflict, ceding the rights of private judgement within private spheres and
insisting that public policy prevail in the public domain, was criticized by
Wardle as "unprincipled from the perspective of both values; it achieves
neither and offends both." (189)
Instead, he maintained that a "values dilemma" is best resolved by
assigning a priority to one value over others. In this case, "protection for
the rights of conscientious refusal to participate in morally objectionable
government-valued activities has a stronger and longer claim to priority and
preference than the efficient provision of morally controversial medical
services", and on this basis Wardle insisted that rights of conscience
should be respected in public and well as private institutions (189).
Unfortunately, this amounts to an assertion that a 'traditional value'
must prevail simply because it is 'traditional'. Professor Wardle attempted
to buttress his position by citing "overwhelming evidence" that protection
of conscience is "a significant contemporary American value" (189 n. 55).
But this simply mirrors the first argument; we must give priority to a
'traditional value' because it is traditional, or to a 'significant value'
because it is significant.
The case thus put fails to engage those who believe that the 'value' in
question needs to be changed, or that it should be superseded by other
'values' in this or that health care institution, or state, or situation.
And it fails to address the circumstances prevailing outside the United
A further problem is presented by the admission that the state, no less
than a citizen collective, is "an entity created to express and enforce
collective will" (187). If the will of a private collective may be
implemented in a private institution, why should the will of a public
collective - the state - not be effectuated in public institutions? If a
Muslim hospital may insist that none of its employees may perform abortions,
why may a state hospital not insist that all of its employees must do so?
The Muslim would answer that his hospital's policy against abortion is
moral, thus binding, but the state's pro-abortion policy is immoral, and,
therefore, not binding. Wardle elsewhere noted the (unexamined) moral
assumptions underlying decisions to provide or not to provide abortions
(186), but the standard 'values resolution/clarification' approach used at
this point in his article precludes a solution predicated upon moral
judgement. As a result, when he pointed out that both private and public
health care workers are likely to encounter moral conflicts, his moral
conclusion (that both are thus entitled to protection) was insufficiently
grounded in his premises (189).
A few of the statutes examined in the article contained 'saving'
provisions. Such provisions exempt from the prohibitions against
discrimination those facilities (or parts of facilities) that specialize in
the procedures to which objection is taken (194). Wardle was somewhat
ambivalent about this, conceding that "it seems curious to deny (legal
facilities) the ability to refuse to hire people who find the work they do
morally objectionable." On the other hand, he suggested the need for
reasonable accommodation of employees whose beliefs change after they are
hired(195). He wrote that one of the advantages of conscience clauses is
that they permit people to change their moral convictions and protect those
convictions, "whether consistent or not"(206).
In practice, however, it is unlikely that a workable alternative to a
blanket exemption can be drafted, at least with respect to facilities that
are mainly involved in controversial procedures. It is enough to hope that
the law can prevent injustice: too much to expect that it can undo all of
the consequences that flow from one's past decisions.
An interesting observation was that most conscience legislation did not
make exceptions for medical emergencies. This Wardle plausibly explained as
arising from "the general belief that few persons will have moral or
religious objections to providing such services when they are truly
therapeutic procedures (in real medical emergencies), rather than elective
Nonetheless, Professor Wardle proposed that carefully drafted exceptions
should be made "for life-threatening emergencies in which the controversial
procedure provides the best hope of saving a patient's life." (195) On this
point he parts company with those who insist that a good end, even the
saving of a life, cannot justify an immoral act.
"Overall," the article states, "the existing conscience clauses manifest
an appalling absence of attention to effectuating the rights of conscience,
and to remedies." However, the Professor deemed criminal penalties
unnecessary if appropriate awards for minimum damages, multiple/punitive
damages and attorney's fees were made available (196).
Rules of Evidence
In reviewing legal decisions involving discriminatory conduct, Wardle
cited Swanson v St. John's Lutheran Hospital (Montana) as "the most careful
interpretation of a conscience clause provision to date, and the most
consistent with its undelying policies." Of particular interest was the
judgement that, once a complainant establishes that her dismissal was
substantially due to her conscientious objection, the burden of proof shifts
to the defendant to show that she would have been fired for some different
Preference in Legislation
In the appendix to the article Professor Wardle provided
A Proposal for Comprehensive Conscience Clause Legislation. With his
permission, his proposed statute is reproduced on this website.