Religion & Law

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.