Wednesday, October 19, 2011
County clerks should not have the same conscience rights as pharmacists
Today over at Public Discourse, Helen Alvare responds to Linda Greenhouse's critique of the Witherspoon Institute's challenge to the Obama Administration's proposed rule on contraceptives. I feel compelled to supplement Prof. Alvare's response to a particularly troubling dimension of Greenhouse's critique. Greenhouse argues that government clerks should not be able to refuse marriage licenses to same-sex couples, then she makes an eyebrow-raising leap:
More common are pharmacists who assert religious reasons for refusing to dispense emergency contraception, the “morning after” pill that prevents pregnancy after unprotected intercourse. What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve?
I do not support a right of conscientious refusal for government employees tasked with providing certain morally contestable services to the public. If the government chooses to accommodate current office-holders by having a co-worker handle a particular case, that's fine. But, particularly in defining the role going forward, the government is justified in requiring its agents to act consistently with government policy. It's not simply a question of public access, but a question of the message to be communicated to the public on the government's behalf. If a state has decided to extend marriage to same-sex couples, then the government has a legitimate interest in ensuring that its employees responsible for issuing marriage licenses embody that policy decision. Same for police officers and firefighters -- you do not have a right not to protect abortion clinics.
But using the existence of a professional license to convert millions of private sector workers into government agents is another matter entirely. Professional licenses ensure competence; they should not be turned into a mechanism of uniformity, especially when it comes to morally contested services. That's a huge jump that would eviscerate the vitality of a morally diverse marketplace and wipe out the capacity of individual providers to act consistently with the dictates of conscience.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/10/county-clerks-should-not-have-the-same-conscience-rights-as-pharmacists.html
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A good point.
But here are some questions for you: What about, say, doctors employed by the military? They're government employees. If the government agrees to provide abortions to service-members, is it legitimate to require doctors to perform those abortions? And, if so, is it that big of a jump to require, as a prerequisite to obtaining a doctor's license, a willingness to perform abortions? And, as a final step, how about willingness to perform abortions as a prerequisite to being reimbursed by Medicare or receiving reimbursement from an insurance program that receives federal subsidies? Surely the government can decide how and for what purposes its subsidies can be used.
I guess my main point is this: the line between government employees, government-licensed providers, and private providers who merely receive federal money is a pretty thin one, especially the way the healthcare field is going, with the (federal) government involved at every level. Accordingly, I'm not sure a bright-line distinction along those lines is tenable going forward.