Just finished reading Catherine Grealis’s student note, “Religion in the Pharmacy: A Balanced Approach to Pharmacists’ Right To Refuse To Provide Plan B.”
Grealis provides some background on the history of conscience clauses:
“Conscience clauses are designed to permit healthcare providers to refuse to provide medical services that conflict with their moral, ethical, or religious beliefs. In light of the Supreme Court’s decision in Roe v. Wade, which extended the constitutional right to privacy to protect a woman’s right to an abortion, initial conscience clause legislation focused on enabling healthcare providers to refuse to perform abortion and sterilization procedures they found morally and religiously objectionable. Today, the federal government and most states have enacted laws enabling doctors and other healthcare providers to refuse to perform abortions and other services on moral, religious, or ethical grounds.
“The impetus for the first federal freedom of conscience protection actually came before Roe v. Wade, when the United States District Court for the District of Montana issued an order requiring a hospital to perform a sterilization procedure during a Caesarean section in 1972. Congress quickly responded by adopting the Church Amendment, which allows healthcare providers receiving funds under the Public Health Services Act and the Community Mental Health Centers Act to refuse to perform abortion or sterilization procedures when it “would be contrary to [their] religious beliefs or moral convictions.” Following the lead of the federal government, most states enacted some type of conscience clause legislation by 1978. Today, forty-six states have laws permitting doctors and other healthcare providers to refuse to perform abortion services.”
Overall, Grealis argues that states should adopt freedom of conscience clauses, but has the audacity to call them “compromises” between conscience clause advocates (read: religious nuts) and duty-to-dispense advocates (read: slutty whorefaces). So, basically, what she proposes at the end doesn’t look too different from most existing laws, if you ask me.
ANYWAY, not my point today. A few “notes” (ha, ha) of my own:
1. Theoretically, pharmacists and other healthcare providers could invoke “conscience clauses” on all sorts of medical procedures, but most legislation and court action specifically focuses on reproductive rights. Hmm…sketchy. (you don’t seem to care about providers’ consciences unless you’re talking about my vagina)
2. “Freedom of conscience” protection and healthcare seems like a really…fuzzy? combination to me.
Basically, the idea is that if you object to certain procedures, care, medicines, whatever, on “religious or moral grounds,” you, the healthcare professional (doctor, nurse, pharmacist, whoever) can refuse to perform said service. While this might make sense on an intuitive level (“you can’t make me!”), it presents a LOT of legal ambiguity.
I. Situations, hypothetical and real:
a. I’m a teacher. Let’s say my religion prohibits talking to any redheads — they’re obviously the devil’s children. (Redheads are not a protected class that gets strict scrutiny.) I get a red-headed student in my class. Can I ignore that kid all day, or insult him, or tell him he’s going to Hell, or get him moved out of my classroom? Is that legal? Remember, it’s my RELIGION.
What if we live in a rural area and there’s no other teachers or schools?
b. I’m a pharmacist. I get a customer who is CLEARLY a tweeker, and he has prescriptions for Oxycontin, Morphine, and already has a fistful of Sudafed. He says he has some crazy chronic pain condition, as well as hay fever, and that’s why he needs these drugs. I really really really think he’s a drug addict. I’m convinced. So, morally, I refuse to give him the drugs, because he’s clearly an addict.
But what if I’m wrong? What if I’m just totally paranoid, and he’s actually all tweeker-looking because he is seriously ill? Does the First Amendment give me the right to force this dude to live in pain, just because I think he might be shady?
c. A man has been in a coma for 20 years. He’s now 80 years old. His spouse, children, grandchildren, and pastor all think it’s okay to pull the plug, and he long-ago signed a DNR (do-not-resuscitate) document, but the Catholic hospital refuses to recognize his wishes. You would just unplug his machines yourself, but your county will prosecute you for murder/manslaughter.
What’s the “moral” route: prolonging life, or preventing suffering?
d. I’m a student. I’m starting at Georgetown Law this fall. GULC is Catholic (still?????!!! yeah.). GULC student health insurance doesn’t cover any contraception. Without the pill or some similar hormones, I suffer debilitating cramps, headaches, and often full-out vomiting and fever for about six days each month. Is it really in GULC’s interest to have a potential star student unable to fulfill her academic and professional potential for 20% of her legal education? Is it moral to force me to be sick every single damn month when I don’t have to be?
(If you don’t sympathize — would it have been moral for Professor Severus Snape to refuse to make Professor Remus Lupin the Wolfsbane Potion every month, forcing him to become a full werewolf instead of allowing him to keep his human mind, as current magical technology makes possible?)
Not hypothetical: My dad had a pacemaker (or a succession of them) for about two decades. In the last year of his life, his heart failed so often that his pacemaker was constantly shocking him, essentially mini-electrocuting him on a tri-weekly basis. He elected to disable his pacemaker, and spent the last three months in hospitals and nursing homes, until it finally caved on him.
HOWEVER, if he had had a different doctor who refused to disable the pacemaker, he might have lived another fifteen years. (And yes, this happens all the time — at least, the refusal to disable, if not the 15 years.) He gets electrocuted, a lot. He’s in bed all day and has gross sores because he can’t really move around. He gets four channels on TV, and he says that some of his nursing home caretakers are abusive. How is this the “moral” situation?
II. Just don’t be a freaking pharmacist! (a.k.a. This Doesn’t Violate Free Exercise)
The Establishment and Free Exercise clauses read, “Congress should make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Duty-to-dispense laws simply do not violate the Free Exercise clause. To be frank, going into any health care profession requires a great deal of foresight. Whether you want to be a doctor, nurse, pharmacist, dentist, or optometrist, you have to really plan stuff out. You need to go through all of primary and secondary school, get a bachelor’s degree, take your admissions exam, apply to competitive schools, potentially fly all over the country to interview…basically, you really need to WANT to be a member of this profession, and you need to work hard to get there. It’s not like you can just wake up tomorrow and decide, “hey, I’m going to pharmacy school.”
So, in the 25 + years of life you live before you actually get to become a professional (and that’s assuming you’re pulling a Doogie Howser), it should be your responsibility to do your due diligence. You think life begins at coitus, and know that there’s drugs to prevent that from being true? Oops, um, DON’T BE A PHARMACIST. Hello. Nobody’s forcing you to. The Free Exercise clause doesn’t mean you get to have whatever job you want.
For example, what if alllllllllll my life I wanted to be a cop? I love cops! They do great work! Protect and Serve! Only, oops, I’m a Quaker, too, and I don’t believe in violence. Can I both be a cop and refuse on principle to ever use physical force?
III. Lawyers: Stop letting other professionals steal your job! (a.k.a. create laws that are actually legal documents)
More broadly, at the moment, I’m basically opposed to laws that are so vague to use phrases like “religious and/or moral grounds” (or, for that matter, “viability”). (Religious/moral grounds” actually have the potential to get way, way weird — see previous “ginger” situation.)
We need to stop conflating state-based laws and individual opinions like the latter actually create definitive versions of the former. If the state wants to make owning ferrets illegal, it says it’s illegal; it doesn’t say, “owning ferrets is illegal, except sometimes, you know, it depends what your religion is, let’s talk later.”
Courts and legislatures need to create laws with legal bases, and stop relying on other professions to create legal interpretations. Doctors shouldn’t solicit lawyers’ input when creating new medical paradigms, so why should lawyers let people who know nothing about law to butt in? This just results in muddled, mercurial, and often suspect jurisprudence.