Individual Conscience And Society Collide Over Contraception

Contraception is the latest in a long line of often bitter history of balancing the right of conscience with the needs of society. (This piece first aired on Feb. 16, 2012 on All Things Considered.)

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DAVID GREENE, HOST:

It's MORNING EDITION from NPR News. I'm David Greene. We're going to take a few minutes this morning to revisit two significant decisions in the federal courts this week. In a moment, we'll hear about an appellate court ruling over a shooting that happened along the U.S.-Mexico border, but first, the Supreme Court's decision in the Hobby Lobby case. On Monday, the court ruled that businesses can opt out of covering contraceptives under the new health care law because of religious objections to birth control. The court suggested that businesses can file a form with their insurer claiming an exemption based on religious beliefs. That's an alternative that nonprofits like schools and hospitals are already using. And it could give women access to contraception. But yesterday, the court went even further in a case that's still on appeal. It said a Christian college in Illinois could skip the form and simply write a letter to the federal government. The college claims that filling out the form to an insurer makes it complicit in providing birth control. The courts three female justices were not happy. In their dissent, Justice Sonia Sotomayor wrote that the court, quote, "retreats from the position it took on Monday." This controversy over contraception is the newest chapter in a long and often bitter history that involves balancing the right of conscience with the needs of society, which made us want to listen back to this story from NPR's Rob Stein.

ROB STEIN, BYLINE: The idea of respecting personal, moral or religious beliefs goes way back. Tom Berg of University of St. Thomas School of Law in Minneapolis says think Jefferson, Madison, Hamilton.

TOM BERG: There are plenty of statements from the founding fathers saying that rights of conscience - you know, we did not submit those to government. If you look at the time of the framing of the First Amendment, there's a lot of talk about conscience rights during the founding period.

STEIN: So the right to be guided by one's conscience became one of the nation's most important values, especially during some of its hardest times. Flash forward to the Vietnam War.

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UNIDENTIFIED ANNOUNCER: Several thousand demonstrators are marching along Pennsylvania Avenue in front of the White House, capping a day of...

STEIN: The fight over the right of conscience got intense during Vietnam. People who maintained strong moral opposition to the war claimed conscientious objections to being drafted. War is one thing, but the right to object to a medical procedure based on one's conscience didn't become a big issue until 1973.

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UNIDENTIFIED ANNOUNCER: The Supreme Court today ruled that abortion is completely a private matter to be decided by mother and doctor in the first three months of pregnancy. The seven-two ruling to that effect...

STEIN: The Roe vs. Wade decision was a legal and cultural milestone. But lots of doctors and nurses were horrified that they might be forced to do abortions. So almost immediately, states started passing conscience clause laws to protect them. Robyn Shapiro is a bioethicist and lawyer who specializes in medicine, law and public policy.

ROBYN SHAPIRO: We saw a rash of states pass laws with specific respect to abortion right after the Roe versus Wade decision. But that's not the only form of conscience clause law that we see throughout the country.

STEIN: In Washington, Congress passed national laws protecting doctors, nurses and medical students. Federal law bars discrimination against anyone who won't perform abortions, pay for abortions or refer patients for abortions. Another law requires employers to accommodate religious objections if possible. But in more recent years, things started to change. The debate began shifting from abortion toward contraception, especially after this came along.

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UNIDENTIFIED NARRATOR: Be calm - go directly to Plan B. Plan B is emergency contraception that helps prevent pregnancy after birth control failure or unprotected sex.

STEIN: To some, Plan B blurred the line between abortion and birth control. There's debate about whether the drug could prevent a fertilized egg from implanting in the womb. Pharmacists started turning away women trying to fill their prescriptions. As a result, some states started requiring health workers to honor all prescriptions, others passed laws to protect those who refused. Robin Wilson of the Washington and Lee University says conflicts over conscience seem to be spreading into all sorts of situations.

ROBIN WILSON: Well, I think you've seen sort of a metastases of conscience objections in some ways, you know, an ambulance driver saying I don't want to transport this patient if they know that the patient is on the way to the hospital for an abortion. We've had nurses, for example, saying I don't want to participate in the circumcision of infants.

STEIN: Some doctors have refused to fertility treatments for single woman or gay couples. Others won't withdraw care at the end of life. Many will have nothing to do with lethal injection executions. As President George W. Bush was leaving office, he ordered new protections for health care workers. Advocates like David Stevens of the Christian Medical Association were thrilled. For them, it's about preventing religious persecution.

DAVID STEVENS: The regulation was so important because it said not only for abortion and sterilization but any type of healthcare procedure that you could not coerce health care professionals to participate, and that included any health care professional. Many of the laws on the books now only protect doctors.

STEIN: But it triggered another huge controversy. Critics like Jennifer Dalven at the ACLU charged President Bush had gone too far.

JENNIFER DALVEN: It would do things like give hospitals a free pass if they deny emergency abortion care to a woman who was literally dying for need of the care.

STEIN: When President Obama took office, one of the first things he did was rescind most of the Bush regulation. Then, the new healthcare law stirred the whole thing up again. This time the question was whether institutions, not just individuals, have a right of conscience. Law professor Robert Vischer of the University of St. Thomas says yes.

ROBERT VISCHER: I think the lifeblood of individual conscience is this rich tapestry of morally distinct institutions.

STEIN: And many, like Dr. Stevens of the Christian Medical Association, think more conflicts over conscience are probably coming.

STEVENS: Physician-assisted suicide, human cloning, embryonic stem-cell research if that's successful. There's a whole host of things coming along in healthcare where people may have either moral, ethical or religious conscience concerns about participating.

STEIN: With rapid medical advances, the next issue could come along any time. When it does, the country will once again have to struggle to find a way to balance the needs of society with the rights of individuals and institutions to follow their conscience. Rob Stein, NPR News.

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