Conscience Clauses: Justifying Bigotry On Religious Grounds

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Conscience Clauses: Justifying Bigotry On Religious Grounds

Pamela Merritt

The thought of people refusing to serve a person of color due to their personal objection to desegregation is now considered indefensible, but refusal of service due to personal religious objections is not a thing of the past.

When I think of refusal of
services the first thing that comes to mind is a story my mother told
me from her childhood when a restaurant in Mississippi refused to seat
her family based on legal racial segregation.  She was a young
child but the memory stuck with her and she shared the story with me
to explain that there was a time when inequality was protected by law
and how that inequality had an impact on her life.  She made certain
to point out that many segregationists justified their bigotry based
on religious grounds. 

The thought of people refusing to serve
a person of color due to their personal objection to desegregation is
now considered indefensible and a violation of the law, but refusal
of service due to personal religious objections is not a thing of the
past.  Pharmacists in Washington State can refuse to fill prescriptions,
for example a prescription for Plan B, if they feel that doing so conflicts
with their religious beliefs.  Pharmacy refusal and refusals of
service are threats to the rights and health of women and defending
against those threats and the erosion of rights that they represent
is a crucial front in the reproductive justice struggle.   

Like most people, I thought
that getting a prescription filled was a simple process.  A person
goes to their doctor, gets a prescription, drops it off at a pharmacy
and the pharmacist fills it.  The idea that an insurer would refuse
to cover, a doctor would refuse to prescribe or a pharmacist would refuse
to fill that prescription on religious grounds and that her or his refusal
would be protected by law never crossed my mind until my home state
of Missouri’s legislature entertained a bill containing protections
for pharmacies earlier this year.  As Amanda Marcotte explored
in her piece Freedom’s
Just Another Word for Punishing Women
pharmacy refusal is a key anti-choice tool that has less to do with
protecting religious freedom than protecting misogyny and forcing women
to bend to the will of the religious right.   

So how did this happen? 
Shortly after the landmark Roe v. Wade decision in 1973, Congress passed
the Church Amendment

that allows healthcare providers to cite religious grounds in order
to refuse to provide services.  Specifically, the Church Amendment
prevents the government, as a condition of a federal grant, from requiring
healthcare providers to perform or assist in abortion or sterilization
procedures against their moral or religious convictions. It also prevents
institutions receiving certain federal funds from taking action against
personnel because of their participation, nonparticipation or beliefs
about abortion or sterilization. Within five years of passage of the
Church Amendment, the majority of states adopted refusal clauses and
refusal clauses have been extended to include assisted reproductive
technologies, contraception and emergency contraception, human embryonic
or fetal research, in vitro fertilization, and stem cell research.  

Sex. Abortion. Parenthood. Power.

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That brings us to the example
of Washington State, where pharmacists can refuse to fill prescriptions
if they feel that doing so conflicts with their religious beliefs. 
On April 12, 2007, the
Washington State Pharmacy Board adopted rules

requiring pharmacies to ensure that patients are able to get prescriptions
filled on site and in a timely manner.  The rules require pharmacies
to dispense all lawfully prescribed drugs and devices, clarifying that
a pharmacist’s personal and/or moral judgments have no place at the
pharmacy counter. On September 27th, 2007, a judge presiding over a
pharmacy refusal lawsuit issued a preliminary order preventing those
rules requiring pharmacies to fill all lawful prescriptions without
discrimination or delay from taking effect.  As The Northwest Women’s
Law Center
out in their statement about the ruling, the rules were adopted to promote
the health of Washingtonians and the ruling preventing those rules from
being applied put the health of all Washington residents at risk. 
Sarah Dunne, legal Director of the ACLU of Washington, pointed out in a
statement issued shortly after the prevention ruling
that "The Pharmacy Board rules
strike the appropriate balance between patients’ rights of access to
medication and pharmacists’ individual rights. We hope the court ultimately
will recognize this and reinstate the rules." 

Access to reproductive healthcare
is being denied on religious grounds through refusals to cover prescriptions
too.  One key question is whether a healthcare insurance provider
can refuse to cover services on religious grounds if they receive federal
funds.  Catholics
for Choice

(CFC) approached that question from the angle of the Catholic healthcare
system and its impact on reproductive healthcare.  Some Catholic
HMOs receive payment for services from federal programs like Medicaid,
which mandates a provision of family planning services.  In their
report Catholic
HMOs and Reproductive Health Care
CFC explored the growth of Catholic managed care and the question of
refusal of services and found that, of the 48 Catholic managed care
plans CFC identified serving some 2.5 million Americans, 25 (representing
52% of all the Catholic plans identified) are providing contraceptive
coverage for enrollees and some of those specify that they will only
cover oral contraception.  

The public policy implications
are clear, since coverage is a key factor in access to reproductive
healthcare and federal mandates should protect that access.  But
the CFC report found that there are few formal regulations that require
health plans that refuse to provide family planning services to disclose
this clearly on marketing and enrollment materials.  As a result,
employers may select a plan and have no idea that it limits or denies
access to reproductive healthcare due to a lack of coverage.  Employees
would then be left to seek reproductive healthcare elsewhere and shoulder
the additional costs or go without that healthcare entirely. 

It’s not as if there aren’t
ways to balance individual freedoms.  In their report, CFC identified
several methods that Catholic healthcare plans may use to make reproductive
health services available to enrollees without compromising their organizations
beliefs. The key element is distancing the Catholic plan from the direct
provision of and/or direct payment for forbidden services.  The
Catholic plan can contract with non-Catholic providers, such as another
hospital or clinic, to provide the services.  They could also arrange
for the money they receive from enrollees or their employers that goes
to pay for reproductive health services to go through third-party. 
Or a Catholic plan may arrange for another insurer to handle payment
and provision of reproductive health services. 

So let’s rewind to my earlier
exploration of going to the doctor, getting a prescription then going
to the pharmacy and getting that prescription filled – things clearly
aren’t as simple as they initially appeared to be.  A woman may
be denied access as a result of her healthcare insurance provider’s
refusal of coverage, she may have a doctor refuse to treat her or she
may actually make it to the pharmacy only to find that the pharmacist
refuses to fill the prescription on religious grounds.  And access
to reproductive healthcare looks more like a grueling obstacle course
where the game is based on luck and chance than a protected freedom.