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tions or sterilizations, if such would be contrary to religious or moral beliefs.27 Because of the Supreme Court decision in Roe effectively required all states to legalize nontherapeutic abortion on demand, the conscience clause movement became immediately relevant, and most states enacted conscience clauses to protect the right of at least some health care providers to refuse to perform or participate in abortions.

The Church Amendment is still the main federal protection for the rights of conscience of health care providers. Additionally, Title VII of the Civil Rights Act requires employers generally to accommodate the religious beliefs of their employees that do not cause undue hardship.28

Also, in 1997 Congressional "amendments extend[ed] conscience protections to cover Medicaid and Medicare managed care plans, which may now refuse to ‘provide, reimburse for, or provide coverage of a counseling or referral service if the... organization offering the plan... objects to the provision of such service on moral or religious grounds...'” 29*

Forty-nine states provide at least some protection for rights of conscience of some health care providers in some circumstances.30 (Only Vermont has no statutory protection for rights of conscience whatever.) However, only one state, Illinois, has a comprehensive conscience protection law that covers all health care providers, institutions, and payers and applies to all health care services. One other state, Washington, protects the right of conscience to refuse to participate in any health care services and covers all individuals but only religiously-affiliated institutions.

Abortion is the focus of most conscience clauses. Forty-five states allow some health care workers to refuse to participate in abortions. Twenty-five states' conscience clauses cover only abortion. Ten states allow health care workers to exercise their right of conscience to not participate in abortion only if working for individuals or private institutions. Two states conscience protection laws cover abortion but apply only when the health care provider is an individual, and one other state has a similar restriction covering sterilization also. Four states cover specifically abortion and contraception. One state covers health care providers regarding abortion, sterilization and artificial insemination, and another covers only abortion, abortifacients, and sterilization. At least three states (California, Mississippi and New Hampshire, and I suspect more but have not done the research) protect a right of health workers to decline to participate in some end-of-life decision implementations in limited circumstances. Two states cover counselors and social workers in some contexts. One state protects the right of pharmacists to not participate in abortion, assisted suicide and euthanasia. Eleven states protect the rights of conscience of medical and nursing students in some situations. Only nine of the sixteen states that mandate health insurance plans to include contraceptive drugs or devices if prescription drugs are covered contain any conscience clause provisions (usually limited to religious employers).

Existing conscience clause laws are inadequate as drafted for at least five major reasons. First, most are very narrow in terms of the practices, procedures or contexts in which they apply-most were drafted with abortion and sterilization in mind and go no further. Second, many of them are very narrow and restrictive, covering only a small group of health care providers, not workers in the health care industry generally. Third, the scope of protection (the discrimination forbidden) is limited. Fourth, the remedies and procedures for vindicating the rights are undeveloped and restricted. Fifth, most of the laws are outdated, having been written before many of the medical developments occurred that have created some of the most difficult moral dilemmas.

V. HOSTILE INTERPRETATIONS In addition to the deficiencies of drafting, there are problems of interpretation. Judicial interpretation of these statutes has been very grudging, even hostile. In contrast to how civil rights laws in general have been construed during the past thirty years, conscience clauses have received very cold, unsympathetic, unsupportive reception by state and federal judges. Judges have given narrow, hostile interpretation regarding procedures covered, persons covered, protections provided, and have casually circumvented the laws by invoking other laws.

27 1973 U.S. Code Cong. & Admin. News 1473, 1553. 28 42 U.S.C. 8 2000.

29 Katherine A. White, Note, Crisis of Conscience: Reconciling Religious Health Care Providers' Beliefs and Patients' Rights, 51 Stan. L. Rev. 1703, 1708 (1999), citing Balanced Budget Act of 1997, Pub. L. No. 105-33, tit. IV, § 1852G)(3)(B), 111 Stat. 251, 295.

30 Current State Statutes, January 2002, in Americans United for Life, Health Care Rights of Conscience Act, Model Legislation and Policy Guide, January 2002 (herein “AUL Rights of Conscience Act”).

or ...

ices." 32

In the limited time available to me, I cannot adequately convey the hostile tenor of most of the cases interpreting conscience clauses. Let me just give you a few selected examples. For example, in Browhfield v. Daniel Freeman Marina Hospital.31 In that case, a rape victim asked an emergency room worker at a Catholic hospital about the availability of the “morning after” pill. The worker declined to give any information because of her religious beliefs. The patient brought suit against the hospital, and the hospital raised the California conscience clause in defense. That statute provided that “no nonprofit hospital or clinic which is organized or operated by a religious corporation...or its administrative officers, employees, agents

.. governing board shall be liable... for failure or refusal to perform or to permit the performance of an abortion in such facility or clinic or to provide abortion serv

Thus, the case turned on whether the morning after pill produced abortion. Finding no definition of "abortion” in the statute, the court made no effort to discern legislative intent (specifically, regarding the morning after pill, or generally, regarding protecting conscience rights of health care providers), and made no effort to interpret the statute in light of the policy underlying the statute or to achieve integrity within the structure of the provision, or to determine as a matter of judicial notice whether the morning after pill was understood by the medical community or the Catholic medical community to cause abortion.33 Instead, citing dicta in another case suggesting that at least one federal court did not consider the morning after pill to be an abortifacient, 34 the California court summarily concluded that the hospital's refusal was not protected because the morning after pill did not cause abortion.35

While the conclusion of the court that the morning after pill does not cause abortion in at least some cases is probably inaccurate, the method of statutory construction is even more disturbing. The question the court had was one for which a resort to random dicta in other cases giving unsupported judicial ruminations in the context of interpreting entirely different statutes enacted by a different government is not an intelligent approach to legislative interpretation. The Brownfield case is an example of how judges can manipulate the interpretation of a statute to reach the outcome they prefer for personal or ideological reasons. Thus, it illustrates an unfortunate but very real risk for those who try to rely upon the current generation of conscience clauses.

In Spellacy v. Tri-County Hospital,36 Pennsylvania courts held that a part-time admissions clerk who claimed that she was fired by the hospital as a result of her refusal to participate in the admission procedures of abortion patients was not protected by the state's conscience clause because her position was one of mere "ancillary” or “clerical" assistance.37

Likewise, in Erzinger v. Regents of University of California, the California Appellate court noted: “The proscription only applies when the applicant must participate in acts related to the actual performance of abortions or sterilizations. Indirect or remote connection with abortions or sterilizations are not within the terms of the statute." 38

The same bias is reflected in the dissenting opinion of two Montana Supreme Court justices in Swanson v. St. John's Lutheran Hospital. 39 That case involved a

31 256 Cal. Rptr. 240 (Cal. App. 2989).

32 Cal. Health & Safety Code 8 25955k. Six years ago, this statute was revised and recodified Cal. Health & Safety Code 123420 (2001) without substantive change.

33 While the conclusion of the court that the morning after pill does not cause abortion is medically inaccurate (in at least some cases), the method of statutory construction is even more disturbing. The question the court had was one for which a resort to random dicta in other cases giving unsupported judicial ruminations in the context of interpreting entirely different statutes enacted by a different government is not an intelligent approach to legislative interpretation. 34 McRae v. Matthews, 421

F. Supp. 533 (ED. N.Y.1976), rev'd on other grounds, Harris v. McRae, 448 U.S. 297 (1980). The court also cited dicta from another case.

35 Brownfield, 256 Cal.Rptr. at 245.
36 18 Empl. Prac. Dec. (CCH) [8871 (Pa. C.P. De. Cty.), affd, 395 A.20 998 (1978).

37 Id. at 5605 (relying on administrative regulations interpreting the conscience clause). Alternatively, the court found that the hospital had met its duty to accommodate because it had offered her four others jobs, all of which she had declined. "There came a time in the Spellacy situation when the plaintiff had simply rejected one too many reasonable accommodation offers, and her employer could not be expected to continue generating new ones.” Durham, Wood & Condie, supra note at 318-319.

38 Erzinger v. Regents of University of California, 137 Cal. App. 3d 389, 394, 187 Cal. Rptr. 164, 168 (1982). The court held that 42 U.S.C. $ 300a-7 did not apply to prevent a university from requiring students to participate in a comprehensive health insurance program which included benefits for persons desiring abortions or sterilizations.

39 597 P.2d 702 (1979).

wrongful discharge action brought by a nurse-anesthetist who had worked at a hospital for eight years. She had performed more than two dozen sterilizations, but after participating in one particularly shocking and gruesome abortion, she informed her supervisor that she would not participate in any more sterilizations. The hospital administrator tried to change her mind, referred her to her priest, and called the priest to ask him to counsel her to change her mind. She remained fixed in her decision, and the next day was fired by the hospital administrator. She brought suit under Montana's conscience clause, which protects the rights of individuals to refuse on moral or religious grounds to perform sterilizations, and prohibits employment discrimination based on such refusals. After a harrowing encounter with a hostile Montana trial court, she ultimately prevailed in the Montana Supreme Court.40 However, two of the Montana Supreme Court justices would have denied her claim on the ground, inter alia, that her reasons for refusing to participate in any more sterilizations were emotional rather than moral.41

In Catholic Charities of Sacramento, Inc. v. Superior Court,42 a Catholic charitable organization was held not to qualify for the “religious employer" exemption from a California statute requiring employer to provide prescription contraceptives in benefits package, and was also denied constitutional protection from that requirement which violated basic Roman Catholic doctrine. .

In Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for Choice, 43 the Alaska Supreme Court held that that state's conscience clause was unconstitutional to the extent it applied to allow a private nonprofit hospital that was the sole hospital in the MatSu valley to refuse to provide abortions because it was a de facto quasi-public institutions.

In Larson v. Albany Medical Center, 44 a New York state appellate court held that employees fired in alleged retaliation for exercising rights protected under the state conscience clause had not no private right of action.

VI. THE HISTORY OF PROTECTION OF CONSCIENCE IN AMERICA The history of protection of conscience in America is directly relevant to the protection of rights of conscience of health care providers in three ways. First, protection for rights of conscience underlie and historically preceded the First Amendment.45 In June, 1776, even before the Declaration of Independence, the Virginia Declaration of Rights provided, inter alia, that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience..." 46 After centuries of government support for the state church in Virginia, the Baptists led a petition campaign demanding that "every tax upon conscience... be abolished.” 47 In 1779, Thomas Jefferson introduced his Bill for Establishing Religious Freedom in the Virginia Legislature (House of Burgesses). It declared that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” (If Jefferson thought that about merely funding things against ones will, one can imagine what he would say about being compelled to perform acts or services like abortion or the MAP against one's conscience.)

Jefferson's Bill did not pass for over six years, but in December, 1785, while Jefferson was Minister to France, James Madison engineered passage of Jefferson's Bill. As finally enacted it declared that “no man shall be ... molested or burdened in his body or his good, nor shall otherwise suffer on account of his religious opinions or belief ... and that the same shall in no wise diminish, enlarge or effect their civil capacity.” So proud was Jefferson of his role in securing protection for rights of conscience that he asked that his gravestone be inscribed: "Thomas Jefferson, Author of the Declaration of Independence, of the Statute of Virginia for Religious Freedom, and Father of the University of Virginia.”.48

40 See infra, notes through and accompanying text. See also Swanson v. St. Johns Lutheran Hospital, 615 P.2d 882 (Mont. 1980) (affirming award of $11,950.86 to Nurse Swanson, and affirming rejection of her claim for punitive or future damages for lack of evidence).

41597 P.2d at 714. The hospital administrator himself obviously perceived her denial to be based on religious/moral grounds, and treated it as such, contacting the nurse's priest in an effort to have him influence her to drop her objections. The dissenters failed to explain the distinction between “emotional” and “moral” grounds. Are they really mutually exclusive categories? Their bias against conscience clause rights is evident.

By contrast, in a case interpreting a conscience clause that protects the right of physicians from employment discrimination because they have performed abortions or sterilizations, a pair of federal courts did not require any evidence about the moral or religious basis for a doctor's practice or sterilizations. See Watkins v. Mercy Medical Center, 364 F. Supp. 799 (D. Ida. 1973), affd, 520 F.2d 894 (9th Cir. 1975). There appears to be at least a hint of anti-Catholic, antiprolife bias in the way the conscience clauses have been interpreted. See also In Re Raquena, 517 A.2d 886,891 (N.J. Super. 1986) (lecturing Medical Center that unwillingness to participate in withdrawal of life-support food hydration systems was not “pro-life”, and requiring the hospital to participate in the withdrawal over its and staff's moral objections). See further infra notes through and accompanying text.

42 109 Cal.Rptr.2d 176 (3d D.Cal.App. 2001).
43 948 P.2d 963 (Alaska 1997).
44 676 N.Y.S.2d 293 (3d App. Div. 1998).

45 Joseph L. Hassan, Freedom of Conscience in Early Virginia: A Precursor to the Religion Clauses of the First Amendment, Paper submitted for Origins of the Constitution, Apr. 17, 1998.

46 Kermit Hall, et al, American Legal History: Cases and Materials 70 (1996). 47 Hassan, supra, at 12.

80-684 D-3

Second, it is critical to understand that in America in the 1770s and 1780s two different views about matters of conscience and religion were competing.49 One view, with a high and honorable heritage traceable to John Locke's famous essay, A Letter Concerning Toleration, viewed accommodation of religious variety and differences to be a matter of utilitarian toleration or accommodation. In some of his early writing, at least, Thomas Jefferson advocated this approach. Respect matters of conscience and religion as simply a matter of toleration-sound public policy, good neighborliness and good Polistes. On the other hand, the Virginia Baptists and most famously, James Madison, spoke of matters of conscience and religion not merely as toleration but as fundamental, natural rights. It makes a big difference whether respect for another's moral convictions is given simply as a matter of convenience and tolerance (to be suspended when outweighed by other political considerations, for example, in time of emergency), or whether that is a matter of your neighbor's basic civil rights. Fortunately, the Founders ultimately concluded that protection for conscience was a matter of fundamental right. Early colonial charters and state constitutions spoke of it as a right, and during the frightening emergency of the War of Independence, rather than suspend respect for divergent moral views, many states granted exemptions from conscription to persons with religious scruples against war, such as Quakers and Mennonites. In 1775, the Continental Congress granted a general exemption from military conscription to religious groups. The Virginia Declaration of Rights was initially drafted too guarantee "fullest toleration" of religion; but Madison amended it and when it passed, it protected the rights of religion: “all men are entitled to the full and free exercise of it according to the dictates of conscience.” Madison's Memorial and Remonstrance expressed the language of rights, not toleration (“The equal right of every citizen to the free exercise of his Religion according to the dictates of conscience is held by the same tenure with all our other rights."

50 Of course, the best example is the protection of conscience as a right is inclusion of the right to free exercise of religion in the First Amendment of the Bill of Rights. (James Madison, of course, was the Father of the Bill of Rights.) Ironically, some courts and most commentators today have slipped into using the language of toleration and accommodation. It is time for us to reassert emphatically the language of rights.

Third, when an effort to revive the religion tax in Virginia was made after the War of Independence, James Madison drafted his famous Memorial and Remonstrance declaring that certain things like religious duties “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." 51 He explained why:

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of a Civil Society, who enters into any subordinate Association, must always do it with reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. 52 Madison clearly understood that if men are not loyal to themselves, to their conscience, to their God and their moral duty as they see it, it is utterly irrational folly to expect them to be loyal to less compelling moral obligations of legal rules, statutes, judicial orders, or the claims of citizenship and civic virtue, much less professional duties. If you demand that a man betray his conscience, you have eliminated the only moral basis for his fidelity to the rule of law, and have destroyed the foundation for all civic virtue.

Finally, the loss of virtue that results from requiring men to violate and disregard their conscience undermines the basis for self-government. The founders of the American Constitution really believed that virtue in the citizenry was absolutely esrupt." 55

48 Hassan, supra, at 17.

49 Dawn Hendrickson Steadman, The Free Exercise Clause and Original Intent: A View Toward Exemptions, for Origins of the Constitution, Winter Semester 2000.

50 Steadman, supra, at 24.
51 Id.
52 James Madison, Memorial and Remonstrance cited in Hussan at 15.

sential, indispensable for this system of government to function and survive. I have brought just a few quotes from the Founders to make this point.

Thomas Jefferson: “O]ur rules can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.” 33

George Washington: “Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of Free Government. Who then is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?..."54

Samuel Adams agreed that “neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally cor

James Madison told delegates to Virginia's ratifying convention: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”56 He also wrote in Federalist No. 57: “The aim of every political Constitution is or ought to be first to obtain for rules men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

John Adams clearly warned: “Out constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”57 He also said: “Liberty can no more exist without virtue and independence than the body can live and move without a soul.” 58 Thus, protection of conscience has been crucial to the foundation of this nation.

VII. CONCLUSION This Energy and Commerce Committee has recently be involved in hearing testimony about enormous scandals caused because businessmen and accountants and other professional have anesthetized their consciences in the pursuit of wealth. The consequences have been seedy, shady, and disastrous for the companies and for the economy of the country.

In this context, it is more than a little ironic to hear abortion zealots plead that Congress must look the other way while they continue to coerce health care professionals and entities to ignore their consciences. The results of not protecting and encouraging the exercise of conscience in the health care profession will be just as disastrous as it has been for Enron and Worldcom and perhaps for Martha Stewart.

Currently pending in Congress is the Abortion Non-Discrimination Act. It is a very small, but very important step in the right direction. It simply protects conscience by requiring modest accommodation for entities that cover and pay for and provide medical services. It merely prohibits use of state power to coerce abandonment of conscience and moral principles. It is a true neutrality provision, guaranteeing each health care participant the right to choose for himself or herself or itself to follow the values and moral precepts they espouse.

I urge this Committee to act promptly to enact the Abortion Non-Discrimination Act and other acts which will address the crisis of conscience and begin to eliminate the intolerance, coercion and discrimination against health care participants who do not believe in participating in the provision of abortion and other morally controversial procedures.

ATTACHMENT

Summary of State Laws Protecting Rights of Conscience July 8, 2002

Alabama

Alaska

Code of Ala. $ 22-8A-8 (2001) No nurse, physician or healthcare provider is required to withdraw life

sustaining treatment. Health care provider will attempt to transfer patient to other provider. Alaska Stat. $ 18.16.010 (b) "Nothing in this section requires a hospital or person to participate in an

abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section."

53 Thomas Jefferson (1743-1826)

54 George Washington, Washington's Farewell Address from Saul Padover, The Washington Papers (searched Sept. 9, 1999).

55 Id. 56 Id.

57 J. Howe, The Changing Political Thought of John Adams 165 (1966). 58 10 The Works of John Adams 284.

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