Legal Commentary

As the Washington Post reported, the Bush Administration on Thursday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs.  Dahlia Lithwick (like many others) is not pleased.  In her view, the solicitude for health-care workers' conscience rights (or, as many in the press insist on putting it, conscience rights) is inconsistent with a South Dakota law that requires abortion-providers to tell women, before performing an abortion, that they are about to terminate the life of a whole, separate, unique, living human being with whom she has an existing relationship.  She says, [r]eading the new HHS regulations together with the mandatory South Dakota 'script,' one can only conclude that those same health providers who cannot be compelled to perform an abortion may nevertheless be compelled to deliver misinformation about it.

I blogged about the South Dakota law here.  I agree, to be clear, that no one ought to be required to deliver misinformation.  The question, I suppose, is whether there is a truth to the matter whether an unborn child is a whole, separate, unique, living human being.

For now, though, my question is more prosaic:  Why the scare quotes around conscience in so many places? 

Emily Bazelon contends that we should refrain from calling this 'the conscience rule,' as the administration urges.  It's really a rule about why your conscience is better than my conscience.  This is not convincing.  The conscience of a person seeking an abortion, or Plan B, or some other procedure or product is not burdened by the refusal of a particular person to provide it.  (This is not to say that such a refusal might not cause inconvenience and even hardship.  Nor is it to say that the rule protecting health-care workers' conscience-rights is, all things considered, justified.)  

But again, why the scare quotes in so many stories about these regulations?  Is there some doubt as to whether some workers do object, in conscience, to providing certain products or services?  Is it that objections to, say, Plan B simply don't count as conscientious ones?  (Would we put scare quotes around conscience if the dispute involved, say, a print-shop owner who did not want to produce hateful flyers for Fred Phelps?)  It strikes me that it would be more helpful, honest, and civil to oppose the regulations on the (reasonable) ground that those whose consciences are (rightly or wrongly) burdened by providing Plan B should have to rely on self-help (i.e., they should have to find a new line of work) and not on legal protections.