In our opinion: Conscientious objection

Published: Saturday, March 17 2012 12:00 p.m. MDT

Pharmacist Rhonda Mesler talks to reporters in Tacoma, Wash., on Feb. 22 after a federal judge ruled that Washington state cannot force pharmacies to sell Plan B or other emergency contraceptives. She and others sued, saying the requirement would infringe on their religious beliefs.

Ted S. Warren, Associated Press

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Also read: Abortion creates conflict for pro-life medical workers

Typically, the term "conscientious objection" refers to a refusal to participate in military service because of moral or religious opposition to war. But it is also an appropriate term anytime conscience conflicts with the performance of societal mandates and duties.

The society that genuinely cherishes freedom of conscience should expect and accommodate more, rather than less, conscientious objection.

In today's Deseret News, Eric Schulzke's report on conscience protections demonstrates how changing professional norms and creeping government mandates have put some health care providers into situations where they believe their rights of conscience have been violated. His report also points to examples of how individuals of conscience may be systemically discriminated against in certain educational or professional settings.

Contemporary law and evolving professional norms now allow for medical procedures and pharmaceuticals that stop the beating hearts of fetuses, and in some jurisdictions, the beating hearts of the terminally ill.

Those who become physicians and care givers because they seek to heal hearts rather than stop them and who understand issues of life and death within a rich ethical, moral or religious context, may find such life-ending practices morally reprehensible, regardless of legality.

Clearly, some deeply held religious beliefs may be so antithetical to the core function of a professional role that it might be inappropriate for those embracing that belief system to pursue such a profession. But we believe most of the direct conflicts between conscience and practice — although poignant and real — occur on the margins of practice and that many of those conflicts can and should be accommodated through thoughtful exemption or professional referral.

Bureaucracies exist, in part, to try to anticipate and avoid conflict by subsuming unpredictable human behavior under generally applicable guidelines and rules. To the extent that bureaucratic rules impinge on conscience, bureaucracies should consider thoughtful exemptions for conscience.

But conscience rights deserve far more than officious accommodation. James Madison, the father of the Constitution and the drafter of the Bill of Rights, expressed it most succinctly when he wrote, "Conscience is the most sacred of all property." Madison argued that the kind of powerful legal protections afforded the owners of physical property should extend all the more to intangible rights like the free use of one's faculties, the free choice of occupations, individual opinions and — first and foremost — to conscience. Indeed, Madison went so far as to say that the "very nature and original conditions" of our social contract are to protect conscience.

While Madison's views may not be authoritative, they are insightful and instructive. By elevating conscience above ownership of physical private property, Madison indicates how our legal system should deal with conscience. Government should not be able to force someone to act contrary to their understanding of a solemn duty to their Maker except for the most compelling of reasons. And when government feels so compelled, individuals should have the right to protect their conscience rights against intrusion in a court of competent jurisdiction.

That right to be taken seriously by a court of law (what is sometimes called a private right of action) doesn't mean that conscience automatically trumps, especially when societal norms of safety and morality are threatened. When courts have operated under a standard that takes conscience as seriously as we suggest, they have, for example, prevented religiously motivated parents from denying medical care to a seriously ill child. Thoughtful case-by-case judging can flesh out the reasonable contours of exemption and accommodation.

Because it has a legacy of accomodating conscience, America has developed a rich, participatory civil society that facilitates the efforts of individuals to do what they consider their sacred duty to meet the charitable needs of others. Sometimes the effective and socially beneficial fulfillment of that sacred duty may come bundled with beliefs and practices at odds with other passionately held norms (e.g., Catholic health services and abortion). Would we really wish to forgo the societal benefits of conscience to preserve uniformity?

Accommodating conscience in a religiously diverse society is not simple. It certainly doesn't meet the bureaucrat's need for straightforward application of rules. But it honors fellow citizens as free, equal and conscientious agents who are seeking, with the help of their best lights, to become the authors of a purposeful life. We should feel confident enough in the benefits that derive from genuine liberty and pluralism to welcome and celebrate conscientious objection in its many manifestations.

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