Conscientious Objection in Medicine and Recent U.S. Supreme Court Cases
Kevin Powell, MD, PhD, FAAP, Private Practice, St. Louis
Historically, many religious people have identified their medical careers as a personal vocation, literally a calling from God. This concept has been extended into secular space as a profession, literally a group who profess a common creed. Medicine is not a monolithic enterprise, much to the consternation of those who want to tightly regulate it. There has always been diversity of doctrine and praxis in medicine. Indeed, osteopathic and allopathic physicians still use different initials for their degrees. There is a balance between meeting the regulatory needs of a huge social institution (such as access, outcomes, and public safety) and accommodating the diverse views, methods, and motivations of the practitioners.
Medicine is a field of human endeavor that deals with life and death issues, including abortion and physician assisted suicide. One should expect there to be disagreements about the goals and methods of providing health care. In a pluralistic society, there need to be reasonable accommodations for those differences.
In any human institution, there will be attempts by a majority to gain control and enforce conformity. This may occur with the beneficent intent of efficiency, uniformity in the product, and ensuring fair and just access without discrimination. The conformity can become a tyranny of the majority. Recent legal cases include two French mayors who, seeking integration of minorities into the dominant culture, banned alternative menu entrees on days when pork was served in school lunch programs. However, courts have held that minorities have rights.
Nothing is more antithetical to freedom of religion than being compelled to carry out acts against conscience. In secular domains, compelled speech is antithetical to the First Amendment of the U.S. Constitution. These concepts were at the core of two important U.S. Supreme Court decisions this past summer. One was Masterpiece Cakeshop, a 7-2 decision with 5 case opinions. The other is Janus, a 5-4 decision in labor law. These cases join Sherbert, Reynolds, and Employment Division as cases in which SCOTUS struggles to create tests that define boundaries on the practice of religion in a pluralistic society. Those boundaries are central to defining the role of conscientious objection in the provision of health care.
Justice Kennedy’s opinion in Masterpiece indicates that he felt there was a need to define a new paradigm in this area, but he did not think the topic ripe enough yet to formulate that paradigm, nor was Masterpiece the right vehicle to deliver it.
I will provide a synopsis of these legal cases, an ethical analysis of the rationales expressed within those Supreme Court opinions, and a synthesis of how that court might frame the balance between the needs of the public and the consciences of the providers.
Medicine is a field of human endeavor that deals with life and death issues, including abortion and physician assisted suicide. One should expect there to be disagreements about the goals and methods of providing health care. In a pluralistic society, there need to be reasonable accommodations for those differences.
In any human institution, there will be attempts by a majority to gain control and enforce conformity. This may occur with the beneficent intent of efficiency, uniformity in the product, and ensuring fair and just access without discrimination. The conformity can become a tyranny of the majority. Recent legal cases include two French mayors who, seeking integration of minorities into the dominant culture, banned alternative menu entrees on days when pork was served in school lunch programs. However, courts have held that minorities have rights.
Nothing is more antithetical to freedom of religion than being compelled to carry out acts against conscience. In secular domains, compelled speech is antithetical to the First Amendment of the U.S. Constitution. These concepts were at the core of two important U.S. Supreme Court decisions this past summer. One was Masterpiece Cakeshop, a 7-2 decision with 5 case opinions. The other is Janus, a 5-4 decision in labor law. These cases join Sherbert, Reynolds, and Employment Division as cases in which SCOTUS struggles to create tests that define boundaries on the practice of religion in a pluralistic society. Those boundaries are central to defining the role of conscientious objection in the provision of health care.
Justice Kennedy’s opinion in Masterpiece indicates that he felt there was a need to define a new paradigm in this area, but he did not think the topic ripe enough yet to formulate that paradigm, nor was Masterpiece the right vehicle to deliver it.
I will provide a synopsis of these legal cases, an ethical analysis of the rationales expressed within those Supreme Court opinions, and a synthesis of how that court might frame the balance between the needs of the public and the consciences of the providers.