I am happy to have joined an amicus brief together with several other constitutional law professors –but written by Doug Laycock and some excellent lawyers in Austin, Texas — in Stormans v. Salecky, a case currently being litigated in the Western District of Washington and the Ninth Circuit. The case concerns the free exercise rights of several pharmacists at small pharmacies who have religious conscience objections to dispensing Plan B emergency contraception, and who are being compelled to do so by the Washington State Board of Pharmacy’s regulations requiring all pharmacies to dispense certain drugs, without exception. I am particularly keen on the description in the brief of Smith and Lukumi-Babalu as representing a kind of range of general applicability — the idea being that many cases will fall somewhere between those two points. That’s nifty, because one often sees Lukumi instead described as an “exception” to the Smith “rule,” which has different connotations. You can read more about the case in Judge Leighton’s most recent opinion.
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.
Here is a terrific collection of essays edited by Gerard V. Bradley (Notre Dame), Challenges to Religious Liberty in the Twenty-First Century (CUP 2012). The contributors are CLR Forum guest Steve Smith and our friend Rick Garnett, as well as José Casanova, Tom Farr, Daniel Philpott, Christopher Tollefsen, William Inboden, Professor Bradley, and my old mentor and dear friend, Kent Greenawalt. The publisher’s description follows.
Almost everyone today affirms the importance and merit of religious liberty. But religious liberty is being challenged by new questions (for example, use of the niqab or church adoption services for same-sex couples) and new forces (such as globalization and Islamism). Combined, these make the meaning of religious liberty in the twenty-first century uncertain. This collection of essays by ten of the world’s leading scholars on religious liberty takes aim at these issues. The book is arranged around five specific challenges to religious liberty today: the state’s responsibility to prevent coercion and intimidation of believers by others within the same faith community; the U.S.’s basic moral responsibilities to promote religious liberty abroad; how to understand and apply the traditional right of conscientious objection in today’s circumstances; the distinctive problems presented by globalization; and the viability today of an ‘originalist’ interpretation of the First Amendment religion clauses.
Kimberley Brownlee (Warwick U.) has posted Conscientious Objection and Civil Disobedience. The abstract follows.
This paper looks at two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection. Both practices raise pressing normative questions about the proper parameters of dissenters’ rights and duties in a reasonably good society. They also raise questions about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. The paper gives a qualified endorsement of the moral justifiability of these two practices. It also explores their credentials as moral rights and their legal defensibility. The paper challenges the dominant liberal view that, in relation to both moral rights and legal defenses, a more compelling case can be made for private conscientious objection than for civil disobedience.