Tag Archives: Conscience Protections

Sepper on Taking Conscience Seriously

Elizabeth Sepper (Washington U. School of Law) has posted Taking Conscience Seriously. The abstract follows.

For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments—most commonly end-of-life care, abortion, sterilization, and contraception—has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions.

This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work—regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care.

McLellan on Jehovah’s Witnesses and Child Protection Legislation

Myles Frederick McLellan  (U. of Ottawa) has posted Jehovah’s Witnesses and Child Protection Legislation: The Right to Refuse Medical Consent. The abstract follows.

Anglo-American law has for some time recognized the fact that the rearing of children cannot always be handled properly within the context of the natural family unit. Nevertheless, it is a far cry from the proposition that children cannot by their parents to a determination that they should not be so raised. The most bitter confrontation between parents and state usually occurs when the parents, far from being uncaring, interact with their children according to certain ideological, ethical or religious principles. Jehovah’s Witnesses are perhaps the most prominent example of this class of parent. They have, because of their interpretation of the scriptures, forbad certain forms of medical or surgical treatment. They have a deep religious conviction against the administration of blood transfusions. Parents who refuse to give consent for a blood transfusion for their children genuinely believe they are providing for their children’s best interest. When a child’s life is dependent upon a blood transfusion, there is an obvious clash of child-care standards – those imposed by the tenets of a religious faith and those imposed by the state.

It is the aim of this article to explore the remedies available to the state in such situations, and then to discuss the propriety of state intervention in such cases.

First Lawsuit to Challenge the (Revised) HHS Mandate

The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius.  The plaintiff is a private non-profit with about 50-60 employees.  Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final.  This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.

I think the RFRA claim is a serious one.  One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in.  ¶¶ 17, 20.   One to keep an eye on.  (h/t Professor Friedman)

Parsing the Administration’s New Position in the HHS Controversy

The Administration says this in its announcement:

Under the new policy to be announced today, women will have free preventive care that includes contraceptive services no matter where she [sic] works.  The policy also ensures that if a woman works for a religious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.

And some of the bullet points say this:

o Religious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception.

o Religious organizations will not be required to subsidize the cost of contraception.

o Contraception coverage will be offered to women by their employers’ insurance companies directly, with no role for religious employers who oppose contraception. 

o Insurance companies will be required to provide contraception coverage to these women free of charge.

Some thoughts after the jump.

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An Uncertain Development in the HHS Mandate

As Mark reports below, President Obama announced this afternoon that the Administration is reversing the decision to require religious employers to pay for health plans which cover contraceptives and abortifacients.  The insurers will instead be required to cover them for free.  [UPDATE: I have amended the title of this post and stricken out the material above because at this point, given the first question that I raise below, I am deeply uncertain exactly what this change means.  More soon.]  There remains the issue of what the religious institutions will be required to tell their employees about the availability of these products and services.

ADDENDUM: Some additional questions beyond the issue of what religious institutions will need to say to their employees about the availability of contraceptives through their insurer: (1) Won’t the insurer simply pass the cost of the products and services which it is being compelled provide onto the insureds, including the religious institutions?; (2) What happens when a religious institution is self-insured?; (3) Exactly who qualifies for exemption under the rule?

Sarah Posner’s Muddle

The occasions are rare when I find much to agree with in the columns of Sarah Posner, a writer for the blog “Religion Dispatches.”  But this particular column is a mess. 

The especially messy portion that I want to highlight is the discussion of the connection between the ministerial exception case, Hosanna-Tabor v. EEOC, and the recent decision of the Obama Administration to make permanent a rule which will require various religious employers  to provide their employees with health plans which cover services and products with which they have objections of religious conscience.  Posner says:

The Beckett [sic] Fund for Religious Liberty, which, as I reported in my long religious freedom piece, represents both a Catholic college and an evangelical university in challenging the rule, has issued a statement (tellingly calling the rule an “abortion drug mandate”) claiming that the rule will not withstand constitutional scrutiny. As other observers have noted, opponents of the contraception mandate have claimed that the Supreme Court’s recent decision in EEOC v. Hosanna-Tabor, which recognized a “ministerial exception” that prevents churches from being sued by “ministerial” employees under federal employment discrimination laws. [sic] The Beckett Fund makes this argument in its statement [sic], but legal observers have noted the narrow holding in that case. The opponents of the Obama administration decision like the Beckett [sic] Fund does in its statement, will attempt to make the Hosanna-Tabor into a broad statement against government interference in church affairs in an attempt to bolster their claims against the contraception mandate.

The second sentence in this paragraph is ungrammatical, so it is opaque to me what Posner means.  “Opponents of the contraception mandate”…claim what exactly?  They don’t seem to be making any claim about Hosanna-Tabor in the second sentence.  There is also a citation to the Becket Fund (as in Sir Thomas of Becket, not Samuel Beckett) and a document which it has produced purporting to challenge the contraception mandate by making an argument from the ministerial exception.  Could someone point me to the place where the Becket Fund makes that connection?  Or could someone point me to the place where anyone — anywhere — has made the claim that the holding in Hosanna-Tabor can be extended to “a broad statement against government interference in church affairs” which would render the contraception mandate unconstitutional?  I’ve been poring through documents about this issue on the Becket Fund site, and have not found any making this completely dubious connection.  Who, other than Posner in this column, is saying this?

UPDATE: Though the Becket Fund has not made the argument referenced by Posner, I am apprised that Matthew Franck at First Things makes a connection between Hosanna-Tabor and the contraception mandate in this post.  Franck says that Hosanna-Tabor stands for the view that “in the internal governance of religious organizations, the First Amendment permitted no government interference.”  Respectfully, that is not what the Court held.  The Court held that when it comes to hiring and retention decisions of those employees defined as “ministers” (however defined), anti-discrimination laws which apply to secular institutions do not automatically apply to religious organizations.  The case was narrowly limited to employment discrimination suits “brought on behalf of a minister.”  There is nothing in this holding which would apply to the contraception mandate.  It may be that the connection between the Hosanna-Tabor decision and the contraception mandate case is, as Franck also says, that the Obama Administration in both cases is taking hard-line and extreme positions.  But that is not a legal connection.

Requiring Nurses to Perform Abortions

Another case raising the issue of so-called conscience exemptions: this week, a group of 12 hospital nurses in New Jersey brought suit against their employer, the University of Medicine and Dentistry of New Jersey (UMDNJ), for requiring them to participate in abortions. The plaintiffs allege that the hospital’s actions violate the “Church Amendment,” a federal law which forbids hospitals receiving federal funds, like UMDNJ, from requiring employees to participate in abortions if participation would violate the employees’ “religious beliefs or moral convictions.” The plaintiffs allege that the hospital’s actions violate state law as well. As my friend Rick Garnett at Mirror of Justice notes, this seems to be a pretty blatant violation of law, but, based on a student note I read recently, it’s not all that unusual. The complaint in the case, Danquah v. UMDNJ, is here. — MLM

Parkinson on Accommodating Religious Practice

Patrick Parkinson (University of Sydney Law School) has written an interesting piece, Accommodating Religious Beliefs in a Secular Age: The Issue of Conscientious Objection in the Workplace,  that shows that disputes about conscience protections  are occurring around the world.  He  considers two English cases.  The abstract follows.  – MLM

This article explores the scope for freedom of conscience in the workplace when people of faith dissent from the values of the majority. In particular, it examines the issues in two English cases, Ladele v London Borough of Islington and McFarlane v Relate Avon Ltd, in which professionals lost their jobs because they had a conscientious, and faith-based, objection to providing a particular kind of service to gay and lesbian couples. Continue reading