Good-bye and Good Riddance to Bush’s Unethical “Conscience Clause”

The Obama Administration has deep-sixed a controversial Bush Administration rule that permitted a wide variety of health care workers to  refuse to administer treatments they found morally repugnant, what the Bush administration termed workers’ “right of conscience.”

Hospitals and clinics faced a loss of federal funds if they failed to uphold the rule, which itself was ethically repugnant. Kudos, thanks and hosannas to President Obama for getting rid of the Federal variety; some states, regrettably, still have them.

The American Medical Association’s position on the matter, embodied in a resolution passed by its membership, is clear and well-reasoned. Its reasoning applies to health care workers though the specific subject of the resolution was pharmacist conscience clauses.

The AMA’s resolution, “Preserving Patients’ Ability To Have Legally Valid Prescriptions Filled,” states:

“RESOLVED, That our American Medical Association reaffirm our policies supporting responsibility to the patient as paramount in all situations and the principle of access to medical care for all people (Reaffirm HOD Policy); and be it further.

RESOLVED, That our AMA support legislation that requires individual pharmacists or pharmacy chains to fill legally valid prescriptions or to provide immediate referral to an appropriate alternative dispensing pharmacy without interference (New HOD Policy); and be it further.

“RESOLVED, That our AMA work with state medical societies to support legislation to protect patients’ ability to have legally valid prescriptions filled.
“RESOLVED, That our AMA enter into discussions with relevant associations (including but not limited to the American Hospital Association, American Pharmacists Association, American Society of Health System Pharmacists, National Association of Chain Drug Stores, and National Community Pharmacists Association) to guarantee that, if an individual pharmacist exercises a conscientious refusal to dispense a legal prescription, a patient’s right to obtain legal prescriptions will be protected by immediate referral to an appropriate dispensing pharmacy.

“RESOLVED, That our AMA, in the absence of all other remedies, work with state medical societies to adopt state legislation that will allow physicians to dispense medication to their own patients when there is no pharmacist within a thirty mile radius who is able and willing to dispense that medication.”

I wrote about conscience clauses when they were raising their ugly heads with increasing frequency back in 2005, primarily in relation to pharmacists refusing to help single women obtain birth control.  The news that the Bush rule had been sent to Ethics Hell where it belongs caused me to re-read the post, and my assessment of their unethical nature hasn’t changed one iota since I wrote it (though the version below has been lightly re-edited):

“A Wisconsin pharmacist named Neil Noesen refused to fill University of Wisconsin student Amanda Phiede’s birth control prescription on religious grounds, and now faces discipline from the state Pharmacy Examination Board. He also managed to call attention to a growing call for so-called “conscience clauses” in state laws that would permit pharmacists to withhold professional services that they found morally objectionable.

“Conscience clauses” came into being in the wake of the Supreme Court’s Roe v. Wade opinion legalizing abortion. Obviously that right to privacy ruling put Catholic hospitals in a difficult position, so the U.S. Congress passed the Church amendment (named after Sen. Frank Church of Idaho) in 1973. This provision allowed individual health care providers and institutions such as hospitals to refuse to provide abortion and sterilization services, based on moral or religious convictions. Most states adopted their own “conscience clause” laws by 1978.

…Conscience clauses are a terrible idea that encourage arbitrary professional misconduct. It is an example of how morally-based action can lead to unethical conduct.

An especially wrong-headed “commentary” that appeared a while back in the Los Angeles Times argued otherwise. In it, Crispin Sartwell, who teaches political philosophy at Dickinson College in Carlisle, Pa. stated his opinion that:

“…I personally am no opponent of birth control of any sort or, for that matter, of abortion rights. But people whose jobs require them to violate their own deeply held convictions ought to refuse to do the job, and any politician who upholds freedom or dignity must uphold their right to do so.

“What you should ask yourself in this case is not whether you think people should have access to birth control, but whether you should be required to do things that violate your deepest convictions. Should a soldier be required to torture prisoners, for example? Should he refuse to do so if ordered? Should a liberal corporate peon be required to contribute to the Republican Party? Should a Christian secretary have to assist in the advocacy of man-boy love?”

Well, Professor Sartwell, since you ask…yes, people who voluntarily undertake the duties of a job should either be prepared to fulfill those duties, take the consequences of not doing so, or not take the job in the first place.

That is the ethical duty that one accepts when one agrees to do a job. This couldn’t be clearer.

Sartwell’s examples are terrible:

  • U.S. soldiers are, in fact, not only permitted to refuse to obey an illegal order (like being ordered to torture a prisoner) but are required to do so.
  • Contributing to a political party is not a duty of employment, and refusing to obey an order to do so has nothing to do with “conscience.”
  • His last bizarre example comes from the beginning of his essay, in which he describes a supposedly true anecdote about a devoutly religious woman who served as a secretary for an executive who had her type letters related to his involvement in the National Man-Boy Love Association. She needed the job, you see, but didn’t feel it was right to type his letters. But she didn’t, in Sartwell’s terms, “have to assist in the advocacy of man-boy love.” Nowhere are typists regarded as active participants in the projects related to the letters they type; it is not as if the letter wasn’t going to be typed if she didn’t do it. But more importantly, she didn’t have to type the letter at all. She just had to type it if she wanted to keep her job. His argument here is like saying an actor can refuse to speak lines he doesn’t agree with, and still play the role he was cast in.

This calls to mind a court case of a few years back in which a National Basketball Association player was suspended for refusing to stand when the National Anthem was played before games. He said his religion prohibited doing so, and sued. The NBA pointed out that the standard player contract requires players to follow such team rituals. That was enough for the court, which ruled that the player was free to exercise his conscience, but not if he wanted to continue to play in the NBA.

The call for conscience clauses is just another chapter in what I sometimes refer to as the ethical “weeny-fication” of America, in which advocates strive assiduously to take all risk, danger and courage out of moral stands. Courage is a great and necessary test of conviction, and it must not be removed from ethical decision-making. Professionals should be able to make moral stands in defiance of their official duties only if they are willing to take the heat afterwards, and pay the price.

Without this necessary feature, we would all be subjected to paralyzing refusals to fulfill basic duties for moral reasons large, small, eccentric and imaginary. The PETA member check-out clerk who won’t allow you to buy steak and eggs; the ecologically minded Home Depot worker who refuses to let you buy pesticide for your peach trees; the religiously teetotalling bar waitress who will only serve you soft drinks; the SUV-hating gas station attendant who won’t let a gas-guzzling, global-warming Ford Suburban fill up; the Democrat- detesting poll-worker who won’t let one of those socialist Obama-lovers vote; the Fundamentalist science teacher who refuses to teach Bible-denying evolution…oh, one can come up with endless examples, and, frankly, none are any more absurd than the pharmacist that began this discussion.

He has no professional right to refuse to fill a lawful prescription directed by a physician. He has no right at all to make his customer feel like she is doing something wrong, or to inconvenience her by making her go to another store, which might be miles and miles away. His job is to fill prescriptions, not judge them, and if he cannot do that, he shouldn’t be a pharmacist.

He is free to make his stand, and indeed, there are times a stand is appropriate….but it is extremely unwise to pass laws to make moral stands widespread and without consequences. Do I want surgeons free to refuse to operate on criminals, child molesters, adulterers, drug pushers, Michael Moore, Tom DeLay, Paris Hilton, Professor Sartwell’s friend’s NAMBLA boss or Howard Stern just because they may be morally certain that the world would be better off without them? No, I don’t, and neither do you. And, I suspect, neither would Professor Sartwell, if he gave the issue just a bit more thought.

“If you claim the right to behave in accordance with your conscience,” he writes at the end of his article, “then you also must accord that right to all others, even pharmacists.”

Perhaps. But you do not have the right to avoid all consequences that flow from your exercise of that “right”. You have to have the courage to go along with the moral stand, the guts to risk the consequences. The NBA player can refuse to stand for the National Anthem, if he’s willing to pick cherries for a living. Neil Noesen can refuse to fill the prescription, if he’s game for employment at Blockbuster.”

One thought on “Good-bye and Good Riddance to Bush’s Unethical “Conscience Clause”

  1. https://www.eeoc.gov/eeoc/newsroom/release/10-22-15b.cfm

    Jury Awards $240,000 to Muslim Truck Drivers In EEOC Religious Discrimination Suit
    Star Transport Fired Truckers for Refusing to Transport Alcohol, Federal Agency Charged

    CHICAGO – A federal jury in Peoria, Ill., has awarded $240,000 to two Somalian-American Muslims who were fired from their jobs as truck drivers at Star Transport, an over-the-road trucking company, when they refused to transport alcohol because it violated their religious beliefs, according to the U.S. Equal Employment Opportunity Commission (EEOC), which brought the case. The trial started on Oct. 19, and the jury returned its verdict the next day after 45 minutes of deliberation.

    Judge James E. Shadid, the chief judge of the U.S. District Court for the Central District of Illinois, found in favor of EEOC after Star Transport admitted liability in March 2015. The resulting trial was to determine compensatory and punitive damages and back pay. The jury awarded Mahad Abass Mohamed and Abdkiarim Hassan Bulshale $20,000 each in compensatory damages and $100,000 each in punitive damages. Judge Shadid awarded each approximately $1,500 in back pay.

    EEOC alleged that in 2009, Star Transport fired Mohamed and Bulshale after they were required to transport alcohol. Both men told Star Transport that they believed doing so would violate their religious beliefs under Islamic law.

    EEOC also alleged that Star Transport could have but failed to accommodate the truckers’ religious beliefs, as required by Title VII of the Civil Rights Act of 1964. EEOC filed suit (EEOC v. Star Transport, Inc., No. 13-cv-1240) in U.S. District Court for the Central District of Illinois in Peoria in May 2013.

    “EEOC is proud to support the rights of workers to equal treatment in the workplace without having to sacrifice their religious beliefs or practices,” said EEOC General Counsel David Lopez. “This is fundamental to the American principles of religious freedom and tolerance.”

    The case was litigated by EEOC Trial Attorneys Aaron DeCamp and June Calhoun and Supervisory Trial Attorney Diane Smason.

    Calhoun said, “This is an awesome outcome. Star Transport failed to provide any discrimination training to its human resources personnel, which led to catastrophic results for these employees. They suffered real injustice that needed to be addressed. By this verdict, the jury remedied the injustice by sending clear messages to Star Transport and other employers that they will be held accountable for their unlawful employment practices. Moreover, they signaled to Mr. Mohamed and Mr. Bulshale that religious freedom is a right for all Americans.”

    Smason stated, “We are pleased that the jury recognized that these – and all – employees are entitled to observe and practice their faith, no matter what that might be.”

    Bulshale commented, “This case makes me proud to be American.”

    EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website, http://www.eeoc.gov.

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