Why “Conscience” Clauses are Unconstitutional and Dangerous for Women
First, let me say that I am not a constitutional lawyer, nor a lawyer of any stripe at all. What follows is just my lay opinion on the subject. But I surely cannot be any more foolish than some of the supposed experts on Constitutional law if you include the likes of Justice Antonin Scalia (‘no where in the Constitution does it say that just because a person is innocent that we have to let them out of jail’).
We have all been reading with horror this week about the young woman who died in Ireland because the Catholic hospital where she was refused to perform an abortion on an unviable fetus to save her life. Of course everyone keeps saying – oh, that’s Ireland. That could never happen here. Well, think again. Not only could it happen, IT IS happening here. And it is happening right now as we speak.
But I digress.
Many health care workers have lobbied for and received what are called “conscience clauses” in their work contracts. What this essentially does is allows these workers to refuse to perform procedures or participate in procedures or practices they deem objectionable according to their religious beliefs. These conscience clauses have also extended to cover entire medical institutions such as hospitals and clinics if they are operated by religious entities such as the Catholic Church. And of course don’t forget the pharmacists.
These health care people and organizations claim that forcing them to provide certain types of health care – mainly reproductive care for women – is a violation of their religious freedom. This argument is how they convinced the PTB to grant them the ability to refuse treatment for what otherwise are standard, legal, medical issues.
Here is my counter-argument. This conscience clause is unconstitutional on the grounds that it forces the religious beliefs of these health care workers and/or their institutions on the patients against their will and with the power and blessing of the government – in direct violation of the First Amendment.
Point 1. Health care workers have choices. When they begin their medical education, they knowingly choose specialties and practices that have the potential to bring them into contact with women of childbearing age. If they knowingly make the choice to do this, I submit they give up the right to then refuse treatment of any kind. If they are so opposed to various treatments and procedures, then they should choose another specialty where they are not likely to come into contact with women of childbearing age, such as geriatrics, or podiatry.
Further, when they get out of their schooling, they have additional choices. They can choose working environments rich in patients who are not women of childbearing age, or if they seek employment in a venue that puts them in contact with this particular cohort of patients, again, they give up the ‘right’ of refusal of services and procedures.
Point 2. Patients, for the most part, do not have a choice of hospitals, particularly in emergency situations, or if they do not live in a city with more than one hospital. Catholic hospitals in recent years, have been buying up and closing down many of their competitors – the once-familiar ‘community’ hospitals. This means that in many smaller communities where there were once two hospitals, now only one exists. And that one is a place where this discriminatory policy is very much in effect. By law, these hospitals are supposed to provide referrals to another institution or provider for the services that are being refused. But how far away is the next non-Catholic hospital or doctor, and what if it is an emergency? And anecdotal stories abound of providers refusing to provide these legally-mandated referrals since even this is a ‘violation’ of their conscience as well!
Point 3. Danger to Women! These Conscience Clauses are more dangerous to women than all the Todd Akins and Mr. Mourdochs combined. This is because there is no outcry about this. There is no law to grab your attention. No initiative on the ballot. No court case (although there should be!). Just a hospital policy here, and a doctor there. A pharmacist down the street, and a nurse over there. One here, one there, another over there and one more down the street. And in case you think this is only about the Catholic Church, you would be wrong. There are dozens of fundamentalist protestant denominations who follow similar teachings on women’s reproductive health and likewise, make use of these “conscience” clauses to refuse medical treatment to women in hospitals, clinics and doctors offices, as well as refuse to dispense prescription drugs at pharmacies.
I would hope, not being of child-bearing age myself anymore, that someone who has experienced this discrimination would call on the ACLU or another civil rights group and start a huge class-action lawsuit on behalf of people everywhere to get rid of this government-sanctioned religious discrimination that directly violates the Constitution. And for all the Originalists out there (Scalia, I’m looking at you!) you should jump on this bandwagon.
Photo from DonkeyHotey licensed under Creative Commons