Legal Commentary

In the past year or so, there?s been an increasing amount of chat on the law blogosphere and elsewhere about religious accommodation laws. President Obama called for a law that would protect doctors who declined to provide abortion services for religious reasons. There was an interesting discussion in this space a few months back about the possible interaction of conscience, gay marriage, and retirement planning. In this post, I address a particular variant of these laws (called ?conscience clauses? by proponents, and ?refusal laws? by opponents, and which I'll call "pharmacist protection laws") that would allow pharmacists not to have to dispense reproductive pharmaceuticals to which they had a moral objection, such as birth control pills or RU-486.

The logic of these laws is that they avoid forcing pharmacists into a choice between their religious convictions and their professional obligations, and at first blush that seems appealing. Yet something seems peculiarly narrow about these laws, because they don?t mandate a general exception for conscientious objection to workplace duties, but only a narrow one for a particular kind of health care professional. The suspicion this raises is that these proposals don?t express solicitude for conscientious objection in employment generally, but are instruments deployed to protect particular ideologies or promote particular political agendas. As such, I?m interested in examining whether there?s a neutral principle behind these proposed religious exemption laws.

I examine whether such a neutral principle exists, and add several critiques of these laws, below the fold.

There are three limits implicit in the proposed laws that puzzle me. One is the limit to the health care setting. Why should we be concerned only about religious objections to dispensing pharmaceuticals related to reproduction? Consider a Jain who works at a sporting goods store and refuses to sell hunting or fishing equipment because her religion holds that killing animals?even for food?is wrong. Is there a meaningful difference between such a person and the Christian conservative pharmacist?

This example gestures at a second problematic limit: why should only professionals benefit from this protection? Imagine that a woman gets her birth control at a pharmacy, and then goes to the front desk to ring up the purchase, where she encounters a checkout person who believes that using birth control is wrong, and refuses to register the sale. Is there a meaningful difference between a professional (pharmacist) who declines to engage in dispensing the prescription and the worker (checkout person) who declines to register the sale?

These two examples indicate still another concerning limit: why should we be concerned only with religious objections, as opposed to other conscience-based ones? Suppose that an butcher works at a grocery store that sells 95% humanely raised meat, and that the butcher strongly believes that the cruelty of factory farming is an egregious moral wrong. The butcher happily prepares orders for customers who want humanely raised meat, but will not prepare orders for customers requesting the 5% of the inventory that is not humanely raised. Is there a meaningful difference between this butcher?s non-religious but heartfelt moral objection and the religious objections of the individuals in the above two examples?

I don?t have easy answers to any of these questions, and I suspect that easy answers don?t exist. There are clearly practical objections to indulging every employee?s moral objections. This kind of indulgence raises the specter that employees will fabricate objections to get out of work they don?t want to do, and it also creates problems for employers who have to worry that they?ll lose customers because their employees? moral objections will undermine their business?s ability to provide wanted services.

Another possible distinction is that there are legitimate priority choices at play here. Perhaps we can say that professionals have to stand behind their decisions in a more meaningful way than other employees; or that health care decisions are more important because they relate to human life; or that religious objections should be respected more than non-religious ones because religion has a special place in American political and cultural life. These distinctions would make sense of some of the limits in workplace conscientious objector laws, but none of them seem tenable to me.

After writing all this, I am inclined to think that there?s no neutral principle that can justify the pharmacist laws (though there?s certainly no requirement that laws be so justified). Nor am I convinced that they are necessary protections for conscience, for two reasons.

The first is that they ignore the difference between professional and personal identity. Professionals?and workers generally?often facilitate conduct that they might not personally approve of, and we understand that this is because they are acting in their role as a professional, which may well diverge from their role as a private individual. Doctors have an obligation to save lives, even if they think that the patient is a bad actor (you can?t refuse to operate on a criminal?s gunshot wound, for example). Lawyers often argue positions they don?t believe in because they have a duty to be zealous advocates on behalf of their clients (you can?t say ?I?m going to tank this oral argument because I think my client is guilty as sin"). It?s hard for me to see why pharmacists should be treated differently.

The second reason is that there seems to me a meaningful moral difference between first-order and second-order conduct. I can understand a pharmacist saying ?I think birth control is wrong, so I won?t use it? (first-order conduct), but I?m not convinced that the same concerns are raised with providing another with the instrumentality to engage in behavior of which you disapprove morally (second-order conduct). The slippery slope opened up by the latter seems particularly steep. Can an employer fire someone who uses birth control (?I object morally to birth control, and I should not have to be forced to provide anyone with the financial wherewithal to engage in such conduct?)? That seems concerning, but the difference between that instance and filling a prescription is one of degree rather than kind.

So: is there a principled way to justify the pharmacist protection laws?  Interested to hear any thoughts on this, and on religious accommodation in employment more generally.