ROBERT SIEGEL, HOST:
Now, some context for another health care story that's been in the headlines recently, President Obama's insistence that religious employers cover contraception in their employee insurance plans. As NPR's Rob Stein reports, the controversy over contraception is just the latest in a long and often bitter history of balancing the right of conscience with the demands of society.
ROB STEIN, BYLINE: The idea of respecting personal, moral or religious beliefs goes way back. Tom Berg of the 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 governments. If you look at the time of the framing of the First Amendment, there's a lot of talk about conscience of 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 MAN: Several thousand demonstrators are marching along Pennsylvania Avenue in front of the White House...
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 MAN 2: The Supreme Court today ruled that abortion is completely a private matter to be decided by a mother and doctor in the first three months of pregnancy.
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. Robin Shapiro's a bioethicist and lawyer who specializes in medicine, law and public policy.
ROBIN SHAPIRO: We saw a rash of states pass laws with specific respect to abortion right after the Roe vs. 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 towards contraception, especially after this came along.
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UNIDENTIFIED WOMAN: 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 do fertility treatments for single women or gay couples. Other 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 health care 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 the rule triggered another huge controversy. Critics like Jennifer Dalven at the ACLU charged President Bush had gone too far.
JENNIFER DALVEN, ACLU: It would do things like give hospitals a free pass if they denied 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 health care 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 that are coming along in health care 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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