Individual Rights vs. Institutional Identity: The Relational Dimension of Conscience in Health Care
Vischer, Robert K., Ave Maria Law Review
Given the morally controversial nature of developing medical technologies and the centrality of health-care decisions to virtually all modern conceptions of individual autonomy, it is no surprise that health care is a primary battleground in today's conscience wars. Health-care consumers are understandably concerned at the prospect of a provider's moral qualms limiting the available range of treatment options, even if the consumer finds the treatment to be morally permissible. Providers are understandably concerned at the prospect of the state, acting on the consumer's behalf, compelling them to violate their own moral convictions. Both consumer and provider seem to have conscience on their side. Little attention has been paid to the nature, much less the importance, of the relational dimension of these conscience claims.
This omission is exemplified glaringly by the well-publicized battle over the extent to which pharmacists may allow their religiously shaped moral judgments to narrow the range of services they offer. Both sides urge the state to recognize and enforce an individual right--one side advocates for a pharmacist's right to refuse to fill otherwise valid prescriptions on moral grounds without fear of reprisal; the other side argues for a customer's right to have any valid prescription filled by the pharmacy of her choice without delay or inconvenience. (1) Legislatures, for the most part, have embraced the contestants' zero-sum terms of debate; the question under discussion has been simply which set of individual rights should be enshrined in law?
An authentic understanding of conscience would require us to step back from these two-dimensional terms of engagement and to contextualize both the pharmacists' and customers' moral claims. The dictates of conscience are defined, articulated, and lived out in relationship with others. Our consciences are shaped externally; our moral convictions have sources, and our sense of self comes into relief through interaction with others. By conveying my perception of reality's normative implications, my conscience makes truth claims that possess authority over conduct--both my own and the conduct of those who share, or come to share, my perception. Conscience, by its very nature, connects a person to something bigger than herself, not only because we form our moral convictions through interaction with the world around us, but also because we invest those convictions with real-world authority in ways that are accessible, if not agreeable, to others. This is the relational dimension of conscience.
As such, taking conscience seriously suggests that the state should allow the pharmacist controversy to play out in the marketplace to the extent that access to drugs deemed essential by the state is maintained. It is important that pharmacies be given the space to craft their own particular conscience policies in response to the demands of their employees and customers. If some pharmacies require all of their pharmacists to provide all legal pharmaceuticals, and some forbid all of their pharmacists from providing certain pharmaceuticals, and some leave it within their pharmacists' own moral discretion whether to provide certain pharmaceuticals, such diversity is not a sign of legal disorder--it is a sign of moral pluralism, and a mark of a society that takes the relational dimension of conscience seriously. On these morally contested matters, the pharmacy should be primarily accountable to the employee and the customer, not the state, and employees and customers should utilize market power to contest (or support) the moral norms of their choosing. Rather than making all pharmacies morally fungible via state edict, the market allows the flourishing of plural moral norms.
As of 2008, eighteen states had laws that explicitly address the question of pharmacists and conscience. (2) Four states have enacted conscience clauses specifically protecting the exercise of conscience by pharmacists, (3) and other states encompass pharmacists within the conscience protection afforded health-care providers in general. …