A set of regulations by the Department of Health and Human Services, intended to go into effect tomorrow, would have expanded the right of medical professionals to refuse, as a matter of conscience, to perform certain procedures or provide certain drugs. But, earlier this month, a federal court struck down the rules, which would apply, for instance, to a doctor who doesn’t wish to perform euthanasia in a state where it is legal to do so or to a nurse who doesn’t wish to administer a vaccine manufactured from fetal tissue. Without objecting to the largely technical grounds on which the court invalidated the regulations, Moishe Bane and Nathan Diament argue in favor of such protections:
American law, both legislative and judicial, has a magnificent tradition of accommodating the rights and needs of individuals with conflicting interests. Surely, such mutual accommodations should be the aspiration of regulations regarding health and medical care. Sadly, in certain contexts—such as regarding women’s reproductive rights and euthanasia—achieving a balanced approach to competing rights is not the goal of some judges and legislators who instead seek to diminish, and [even] to dismiss, the rights of those Americans committed to abide by their religious tenets.
Even in controversial contexts, legislators have successfully found a middle ground to provide rights to services for some individuals while simultaneously ensuring protections for those unable to provide those services on religious grounds. . . . Unfortunately, [however], respect for the conscience rights of healthcare providers (and other Americans of faith) has been persistently attacked.
The denigration and dismissal of religious belief is frequently advanced in association with both abortion and LGBT rights. Rather than seeking to ensure that these legal rights are balanced with the competing, authentic religious rights of others, many abortion and LGBT advocates frame values borne of religion as illegitimate and undeserving of respect, let alone entitled to legal protection. They assert that any accommodation of religious belief is tantamount to using religion as “a sword” to harm others. Experience has now shown that the preservation of religious-conscience protections need not impose significant burdens on others.
Our courts and our culture must be reminded that America was founded by those who were seeking religious freedom; that is why they enshrined its protection in the First Amendment. A devout Jewish doctor who declines to issue an assisted-suicide prescription shouldn’t be forced to choose between her career and conscience any more than a faithful Catholic attorney who doesn’t want to work on a death-penalty case, or a committed feminist web designer who doesn’t want to build a pornographic website.