Tuesday, June 20, 2006

'Conscience clause' or unconscionable?

It's always fascinating to see which issues bring the left and right closer together.

It appears that the so-called Conscience Clause, championed by right-to-life groups, and vetoed twice by Gov. Jim Doyle, may fall into that category. It is far from a slam-dunk with conservatives.

It is back in the news again because of a recent court decision involving a Wal-Mart pharmacist.

Conservative blogger/lawyer Rick Esenberg explains:
District Judge John Shabaz has dismissed the suit of Donald Noesen, the pharmacist who refused to fill birth control prescriptions at Wal-Mart. Actually, the case wasn't about his refusal. Wal-Mart had told him that he needn't fill scrips for birth control or answer questions about them.

What he got fired for is refusing to help those customers find another pharmacist or putting callers inquiring about birth control on hold indefinitely. While Wal-Mart had an obligation to reasonably accommodate Noesen's religious views, tolerating active obstruction of its customers (as opposed to a mere refusal to provide birth control) went too far.

Although I have supported freedom of conscience for health care officials, this decision seems about right under existing law. If Wal-Mart has a right to sell birth control (and it does), then its one thing to alllow Noesen to opt out. Its another if he actively sabotages the business.
Owen Robinson, another conservative blogger of Boots and Sabers infamy, comes at the issue from a different angle in a Waukesha Freeman column:
Although one would be hard pressed to find a more ardent opponent of abortion than me, I think that the Conscience Clause is a bad law. The Conscience Clause will not prevent a single abortion in the state of Wisconsin. What it will do is reinforce the notion that government should hyper-regulate the relationship between an employer and an employee...

I can imagine a scenario where a doctor takes a job as an abortionist and then refuses to perform abortions. The doctor could collect his salary for no work and characterize any attempt to fire, transfer, or demote the doctor as an illegal violation of the Conscience Clause. Yes, this is an improbable situation, but its possibility illustrates my point. Freedom of conscience is the natural right of every human. We must all act according to the dictates of our consciences. But our right to live by our conscience can never obligate others to also abide by our conscience. Such an obligation imposed on our fellow countrymen is an intolerable affront to their liberty.
Finally, there is Doyle's veto message, which said, in part:
This bill doesn't even require health care providers to give you a referral to someone else if they object to a particular treatment. In fact, the doctor wouldn't even have to tell you about a treatment option that might exist. Even if your life was threatened, this bill would allow a doctor to withhold lifesaving medical care... Because it puts a doctor's political views ahead of the best interests of patients, this legislation ought to be called the ‘unconscionable clause'.
All that said, the bill is undoubtedly going to be back next session, and, barring a major upheaval in the legislature, there will be enough legislators who do Wisconsin Right-to-Life's bidding to pass it again. Unless Jim Doyle is reelected, this is one of many bad laws that Mark Green would be happy to sign into law.


At 10:12 AM, Blogger Terrence Berres said...

Dr. Hibbert: [gasps] My God, that's monstrous. I've never heard of anything so negligen -- I'll have no part of it! [Turns his back on Homer.]

Homer: Can you recommend a doctor who will?

Hibbert: [turns around again] Yes.

--King Size Homer (The Simpsons, episode 3F05)

At 8:14 AM, Blogger Rick Esenberg said...

You've got me wrong.

At 8:24 AM, Blogger Xoff said...


Maybe I wasn't clear enough. I cited your post as an explanation of the case, and Owen's as the example of a conservative who agrees that the law is a bad idea.

I didn't say, although the intro may have suggested, that you oppose the bill.

Sorry for any misunderstanding. My writing should have been clearer.


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