Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, September 26, 2008

Why I oppose the HHS conscience rule

If I provide comments to HHS about its proposed new conscience rule, I'm afraid my comments will not be favorable.  Consider this sweeping grant of individual rights in the proposed rule:

Any entity "that carries out any part of any health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services" shall not "require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions."

Our society's ongoing debates about conscience are important and difficult.  This rule provides a single resolution to the debate to more than 584,000 different health care entities.  As explained in this paper (and in a forthcoming book), I am very leery of top-down solutions to our ongoing battles over conscience.  Those of us who favor the idea behind charitable choice should be especially leery of imposing contested moral norms on organizations that receive federal funding.   You might like the "strings" this time around, but you'll have less basis on which to object next time around.  Freedom of conscience is best viewed as a negative liberty, protecting against state encroachment, not as a positive liberty, empowering individuals to act as they wish without the possibility of any negative fallout from the organizations that employ them.  This proposed rule advances an individualist, rights-driven understanding of conscience, further weakening our political commitment to institutional autonomy and suggesting a lack of confidence in the potential power of mediating structures.


Vischer, Rob | Permalink

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