Way back in 1965, the Supreme Court parroted Harlan Fiske Stone's observation that "All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state." Our society today would do well to remember this.
In light of the prominent place religious liberty commands – not only in our nation's history, but in our Constitution's text (it's the first freedom protected in the Bill of Rights) – one might assume that rights of conscience would always prevail against rights or interests not recognized in the Constitution. But despite the fact that the highest law of our land protects individual religious liberty in black and white, while saying nothing about what some have referred to as "sexual liberty," some today consider individuals' sexual "rights," announced by courts or created by ordinary legislation, to warrant a higher level of protection than rights of conscience.
For instance, Equal Employment Opportunity Commissioner Chai Feldblum once stated in an interview that in cases of conflict between religious liberty and sexual liberty, "I'm having a hard time coming up with any case in which religious liberty should win."
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Tragically, what we see in EEOC and court rulings across the country today is that Feldblum's view is widely shared. Courts have subjected florists and photographers to outrageous penalties and fines for their refusals to provide services at odds with their sincerely held religious beliefs. A baker by the name of Jack Phillips now awaits what promises to be a landmark ruling by the United States Supreme Court on the question of whether the state may lawfully compel him to bake a cake to celebrate a marriage that his conscience forbids him to celebrate.
In this context, it is refreshing to see that the Trump administration is doing its part to reinvigorate protection for rights of conscience in an area where they have long been under fire – the health-care world. Because these battles happen behind partitions and privacy screens rather than in Main Street shops, they don't tend to attract the same public notice. But the subtle oppression of health-care providers as they seek to practice their professions with clear consciences is a shockingly real and common phenomenon.
In 2010, Nassau University Medical Center disciplined eight nurses for raising objections to assisting in abortions. Twelve nurses in New Jersey alleged that their hospital required them to assist in abortions and disciplined a nurse who raised a conscientious objection to the practice.
In a 2009 survey, 39 percent of members of faith-based medical associations reported being subjected to pressure or discrimination from administrators or faculty based on their moral, ethical or religious beliefs. Around 20 percent of medical students indicated that they would not pursue a career in obstetrics/gynecology because of their concerns about facing discrimination and coercion to violate their religious beliefs.
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Their concerns are well-founded. In 2016, the American Congress of Obstetrics and Gynecologists reaffirmed a prior ethics opinion, stating, "In an emergency in which referral is not possible or might negatively affect a patient's physical or mental health, providers have an obligation to provide medically indicated and requested care regardless of the provider's personal moral objections."
Enter the Trump administration. Late last month, the federal Department of Health and Human Services Office for Civil Rights announced a new proposed rule to enforce 25 existing statutory conscience protections for individuals involved in federally funded programs. The rule would protect Americans from being coerced to participate in activities that violate their consciences, such as abortion, sterilization, or assisted suicide.
If you're wondering why it is necessary to enact a new rule to enforce protections already written into the law (just as you might have wondered why we need laws to enforce protections already written into the Constitution), it's because the old rules issued under President Obama's administration created confusion over the extent of conscience protections and lacked effective enforcement mechanisms.
As we all know, "the devil is in the details." In the world of administrative law, this means that, as a practical matter, an administration's specific directives as to how the law should be interpreted and executed will usually trump the common-sense meaning and spirit of the law.
I applaud HHS for having the backs of Americans who seek to live out their faith and obey their consciences, and I hope the proposal will be adopted. If you care about this issue, tell officials so by submitting comments before March 27.