The wailing and gnashing of teeth in some quarters over the modest Hobby Lobby decision has me worried. Apparently, many on the political port side of the country believe that once a favored public policy has been enacted, it immediately becomes a “right” that can never be altered or denied. More, once such a “right” is established for the individual, others should have the duty to ensure access—even at the cost of violating their own religious consciences.
If such thinking prevails, medical professionals could be forced to participate in the taking of human life, for example in abortion, assisted suicide, and (given the research trends in regenerative medicine) providing treatments derived from the intentional destruction of human embryos or fetuses.
That certainly seems to be the direction in which the ACLU wishes to take the country. Recently, the ACLU of Washington State began trolling for potential clients to sue medical professionals or facilities that refused to participate in certain legal procedures or transactions based on religious objection:
Have you or members of your family been denied reproductive health care or end-of-life services by a religiously based medical facility? The ACLU believes that everyone in Washington has the right to receive health care that is not restricted by the religious beliefs of others.
The solicitation listed specific procedures—some of which involve the taking of human life—that presumably a patient should have a right to receive. They include:
- Information about Washington’s Death with Dignity Act [the law permitting doctor-assisted suicide for the terminally ill];
- Referral to support organizations or cooperating providers to assist a patient in using Washington’s Death with Dignity Act;
- Medical providers permitted to participate in Washington’s Death with Dignity Act;
- Palliative care/nursing support for patients who choose to stop eating and drinking to allow natural death (e.g., participation in suicide by starvation, not a natural death)
- Pharmacy dispensary (e.g, forced dispensing of drugs used in assisted suicide, RU 486 abortions, etc.)
Some might think that the Religious Freedom Restoration Act, the law that protected Hobby Lobby, could also protect medical professionals and facilities. Nope. That law only applies to cases involving federal statutes. Unless a state has its own equivalent law, RFRA protections do not apply. (In Washington doctors cannot currently be forced to participate in assisted suicide, but pharmacists do not enjoy equivalent conscience rights.)
But what about the First Amendment’s protection of freedom of religion? Religious health professionals and religiously-operated health facilities may be out of luck on that score, too. Indeed, the RFRA was passed by a near unanimous Congress and signed by President Bill Clinton to overcome a ruling by the U.S. Supreme Court that deprived individuals of religious protection against a law of “general applicability,” e.g., one not aimed at chilling religious practice but which merely has that ancillary impact.
But couldn’t Congress pass a law offering RFRA-like religious protection against state laws? Sure, but the consensus between the religious left and right that culminated in the federal law has completely collapsed over issues such as gay rights. Indeed, today it is unlikely that the federal RFRA—passed a mere twenty years ago—would have a prayer of being enacted.
It is tempting but folly to think that medical providers’ consciences won’t be enlisted in this way. Quebec just legalized euthanasia and requires every doctor to either euthanize legally qualified patients or cooperate in finding a doctor willing to provide a lethal injection. Victoria, Australia has a similar law requiring all doctors’ participation or complicity in abortion.
Moreover, the American medical establishment already opposes conscience exemptions for abortion and the dispensing of contraception. For example, the American College of Obstetricians and Gynecologists (ACOG) published an ethics-committee opinion denying its members the right of conscience against abortion:
The first important consideration in defining limits for conscientious refusal is the degree to which a refusal constitutes an imposition on patients who do not share the objector’s beliefs. One of the guiding principles in the practice of medicine is respect for patient autonomy, a principle that holds that persons should be free to choose and act without controlling constraints imposed by others. . . . Respect for autonomy has particular importance in reproductive decision making, which involves private, personal, often pivotal decisions about sexuality and childbearing.
Such denial of medical conscience is not yet embedded in American law. But if the anti-religious liberties lobby gets its way, it will be. Indeed, in coming years, medical professionals who believe in the Hippocratic Oath’s prohibition against killing could well be driven out of medicine.
Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults for the Patients Rights Council and the Center for Bioethics and Culture. Image adapted from photo by Joe Mabel.