Conscience v. Conscience?
Regulation 45 CFR Part 147 (2011)
Center for Law and Religion at St. John's University
School of Law
3 December, 2011
Reproduced with permission
Here is a view in the Guardian that is
representative of a growing swell of opinion against
the policy wisdom of granting exemptions for
conscience reasons to religious institutions. I want
to ask a question about one feature of the argument
which one frequently hears in these discussions:
"Why should the conscience of
an employer trump a woman's conscience?"
Illinois Democratic Representative Jan Schakowsky
asked in a statement. "Why should an employer
decide for a woman whether she can access healthcare
services that she and her doctor decide are
necessary? Why are we talking about allowing some
employers to put up a barrier to access at a time
when women are struggling afford and access
Indeed, what Rep Schakowsky asks is of vital
importance. This isn't just an issue of separating
church and state, or of being forced to define what
constitutes religious affiliation, doctor-patient
privacy or a public health matter. If President
Obama sides with the Catholic leaders demanding the
exemption, his decision would directly impact the
lives of millions of poor Americans already
struggling in the recession.
It seems to me that this argument is confused,
even if extremely popular and demagogically
effective. The right question is not whether the
religious institution's conscience should "trump"
the individual's conscience. If the health care law
contains an exemption for religious employers, the
individual woman is not being prevented from
obtaining contraceptive services. She is only losing
the power to compel her religious employer (for
whom, one should expect, she agreed to work
voluntarily) to pay for her contraceptive services.
On the other hand, if there is no exemption, the
religious employer is being compelled to
provide contraceptive services, in direct violation
of its beliefs. What is of "vital importance" is the
failure of so many people to recognize this
continues . . .