The Right to Conscience and the First Amendment
Myers, Richard S., Ave Maria Law Review
As of January 1, 2010, Wisconsin law requires that employers who provide health insurance plans that cover prescription drugs also provide coverage for contraceptives, even when providing such coverage violates the employers' religious beliefs. (2) This law was strongly opposed by the Wisconsin Catholic Conference, which stated: "[W]e strongly object to this blatant insensitivity to our moral values and legal rights." (3) After efforts to offer a self-insured plan were abandoned, in August 2010, the Diocese of Madison began offering coverage for contraceptives. The Diocese, however, warned its employees that using the benefit could lead to their termination. (4)
As this example illustrates, the issue of the right to conscience in health care is among the most contentious in American society. Health-care professionals and institutions with traditional moral views on issues such as abortion and contraception are increasingly under attack. These professionals and institutions are finding it increasingly difficult to both comply with their legal and professional responsibilities and adhere to their moral beliefs. These professionals and institutions are increasingly asserting a right to conscience as a way of seeking an exemption from various mandates.
This paper explores the current state of the right to conscience in health care. Most of the paper focuses on the First Amendment law on this topic. It has become increasingly clear that the United States Constitution provides very little protection for religious liberty in this context. Although I support conscience rights under certain circumstances, I largely agree that the source of these rights should not be the First Amendment. Properly interpreted, the First Amendment does not generally provide a basis for conscience rights.
In addition, I think the push for a broad right to conscience, as a matter of federal constitutional law, might be counterproductive. Such advocacy may contribute to the privatization of religion and to the undermining of sound ideas of public morality.
Nevertheless, there are sound arguments to support legal (if not federal constitutional) protection for conscience rights. The source of these rights should rather be based on sub-constitutional protection developed on a case-by-case basis. These protections--largely statutory protections adopted on a case-by-case basis--do offer hope for significant protection for conscience and advocacy. The moral views reflected in these claims of conscience may in the long run help to largely eliminate the need for conscience rights.
I. FREE EXERCISE ARGUMENTS FOR CONSCIENCE
A. Supreme Court Case Law
The First Amendment to the Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (5) It is due in part to this constitutional amendment that the United States is associated with the idea of religious liberty. (6)
Yet, as a matter of constitutional law there is very little support for the idea that the First Amendment provides a basis for a right to conscience. There is little support for the idea that there is a right to constitutionally compelled exemption when a state mandate burdens religious liberty. Reynolds v. United States, (7) the 1879 case in which the U.S. Supreme Court rejected a religious defense to a bigamy prosecution, provides a good example. The Court stated that as a result of the First Amendment "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." (8) The Court thought it clear that it was within the scope of governmental powers to set forth rules regulating marriage. The Court stated: "[I]t is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion. …