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, February 26, 2010

Greenawalt on conscience at BYU

Kent Greenawalt, not surprisingly, offered a treasure trove of thoughtful comments and questions about rights of conscience.  He does not believe that individual religious claims of conscience should be privileged over non-religious claims, but he does believe that institutional claims of conscience should be limited to religious organizations because they are fundamentally separate from the state.  At the individual level, he would look to four factors for determining whether a health care professional should have her claim of conscience recognized: 1) the portion of the job duties affected by the claim; 2) her expectations (e.g., was she training at time when abortion was illegal?); 3) "calling" and 4) public expectations.  I found the third factor -- calling -- to be the most interesting and unexpected.  Kent explained that some jobs seem to entail a greater sense of calling than other jobs, which means that there is a greater cost entailed by having to give it up.  He tentatively offered his view that folks who decide to become nurses or doctors do so out of a sense of calling more frequently than a lawyer or druggist.  This is obviously open to debate, but it struck me as a creative way to avoid the contention that our recognition of conscience claims is a function of professional elitism (lawyers and doctors are entitled, pharmacists usually aren't, cashiers definitely aren't).  In terms of the limits on a provider who is otherwise entitled to claim conscience, Kent would look to "substantial inconvenience" to the customer as the guide, and what constitutes substantial inconvenience may change depending on the service in question.  Having to drive 30 miles for an abortion would not qualify as substantial inconvenience, but having to drive 30 miles for the morning-after pill might.


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What is always omitted in the idea of balancing the provider's interests and the patient's interests, is that the balancing test assumes that patients want more. In fact, some patients want doctors who DON'T do abortions, pharmacists that are pro-life etc. When professional conscience rights are violated, even in a "balanced" way, it yields a profession with NO providers for the pro-life patients who want providers who don't compromise their beliefs. Old people can't get doctors who don't even refer for assisted suicide, because tbe "balancing" test means they must "at least" refer, and in rural areas they must participate. Christian women can't get Ob/Gyns who don't do or refer for abortions, because the balancing test requires this participation as a condition of practicing. Similarly, "expectations" concept loads the dice for abortion. Not only is abortion legal, being a pro-life-only practice is (still) legal. But anyone becoming a doctor when abortion is legal can get forced to participate, while patients who want a LEGAL PRODUCT: pro-life-only care--not only are not considered in the test, their providers are winnowed out of the profession by more and more "expectation" analysis that only considers pro-death-product expectations. Why can't a doctor go to medical school expecting to serve the over 50% of Americans who say they are pro-life, and the vast majority of old people who don't want Jack Kervorkian?

Posted by: Matt Bowman | Feb 26, 2010 3:40:16 PM