RX for Conscience Clauses

As she usually does, Ellen Goodman (in today’s Pioneer Press) does a great job defining the parameters of an issue, identifying the basic principle at stake, and then coming down on the wrong side.

Writing about limits on the extent of conscience she notes --

To begin with, I don't believe anyone should be compelled to do work they regard as unethical. History is full of heroes who rebelliously followed their consciences. It's also full of people who shamefully followed orders.

Bravo. A nice clean statement, which unfortunately, she quickly compromises.

I approach the subject of conscience clauses rather gingerly.

A “conscience clause” is a statutory provision that permits individuals or institutions to refuse to provide or to pay for medical procedures on the basis of religious or moral beliefs. While conscience clauses protect the autonomy and religious freedom of health care providers and organizations from liability for refusing to provide or fund some services, they also affect patient access.

Goodman logically takes us to the nub of that issue --

The very first such laws offered an exemption for doctors in 47 states who don't want to perform abortions on moral grounds. That seems to me a matter of common decency. It also seems like common sense. Who would want their abortion performed by an opponent?

Gradually however, we have had the incredibly expanding conscience clause. In 10 states, health care professionals can refuse to provide contraceptives. In 12 states, they can refuse to do sterilizations.

Indeed, last year the government decided entire hospitals and HMOs had the right to deny these services without losing federal funding. Never mind it is not clear who owns the conscience of a hospital: A church hierarchy? A board of directors? The doctors? The community? Or the taxpayers who foot the bills?

Now, we have gone even further. Conscience clauses are being proposed to protect professionals who refuse to follow end-of-life directives and refuse to use treatments from stem cell research. Most notably, we have bills in a dozen states to include pharmacists who won't fill a prescription.

It's the pharmacists who are getting the most attention right now. In just six months, there were about 180 reports of pharmacists who said no.

Karen Brauer, who heads a group called Pharmacists for Life that claims 1,600 members, compares them to "conscientious objectors." But it isn't that simple.

Why isn’t it that simple?

Because rather than limit moral decisions to their rightful realm of individual responsibility, Goodman would cast moral decisions as, ultimately, a function of the state. Note the implications of Goodman’s next paragraph.

The pharmacist who refuses emergency contraception is not just following his moral code, he's trumping the moral beliefs of the doctor and the patient.

No, the pharmacist is doing no such thing, any more than a local convenience store’s decision not to sell “Penthouse” trumps a person’s right to purchase pornography.

The relationship between pharmacist, doctor and patient (and the pharmacy owner, which Goodman leaves out of the equation) are contractual and market-driven, not moral. The pharmacy owner contracts with his employees. He sets policies. If these policies conflict with the moral code of a potential employee, then that employee must decide what to do and accept the consequences of his decision.

Pharmacies offer a service to doctors and patients. If a moral code prohibits them from providing certain services, then doctors and patients will take their business elsewhere. The pharmacy must accept the economic consequences of its decisions.

"If you open the door to this, I don't see any place to draw a line," Goodman quotes Anita Allen, law professor at the University of Pennsylvania and author of "The New Ethics." Goodman continues, “How much further do we want to expand the reach of the individual conscience?”

Those two quotes are revealing, because “draw a line” and the notion that “we” (which means society through the force of government) have the authority to “expand the reach of conscience” are nonsensical in a free society. The underlying message here is that individual choice is okay, provided “we” don’t let it get out of hand, which Goodman doesn’t want to allow --

Pharmacists don't have the same claim to refuse filling a prescription as a doctor has to refuse performing an abortion. But there are other ways to exercise a private conscience clause. Indeed, in a conflict between your job and your ethics, you can quit. It happens every day.

She’s absolutely right. If there is a conflict between your job and your ethics, not only can one quit, but one should. The question, which Goodman misses, is who is it that creates the moral conflict for the employee? The employer, based on his moral code and market judgment? Or the government based on political correctness or the will of the majority? She notes --

When Thoreau refused to pay taxes as a war protest, remember, he went to jail. What the pharmacists and others are asking for is conscience without consequence.

The Thoreau example is apples and oranges. Thoreau violated a law relating to a legitimate government function -- national defense. Government intervention was necessary.

Goodman would be right in her assessment of pharmacists and others if they refused to, say dispense birth control and were fired by their employers and then sought government protection of their civil rights. Employers setting policy and employees deciding what to do based on their individual moral codes is the way the system is suppose to work.

The final two paragraphs of her column put Goodman into the moral ambiguity inherent in liberal philosophy.

This is not easy stuff. But in the culture wars we have become awfully enamored of moral stances. Have we forgotten that what holds us together is the other lowly virtue: minding your own business?

To each his own conscience. But the drugstore is not an altar. The last time I looked, the pharmacist's license did not include the right to dispense morality.

Unfortunately the lowly virtue of minding one’s own business is incompatible with demanding that the government step in and enforce morality via a pharmacist’s license. A license ought not be government permission to pursue a career. If a license has any value, it is that it demonstrates competence to perform a certain set of tasks, and that's all.

Bottom line, morality is always an individual choice. “Conscience clauses” are good things, but it is ironic that the state passing a conscience clause restores to individuals the right to exercise moral judgment that government never had the authority to take away in the first place.