September 22, 2022
From the outset of the United States, governments have had to determine how they would approach conscientious objectors. In its 1777 Constitution, New York attempted to accommodate them:
And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times here-after, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth. (Emphasis added.)
This policy is striking given the context. Despite ongoing military occupation of New York City by the British army and navy, the state convention endorsed the Declaration of Independence and thus knew military hostilities would continue. So even though the state and its citizens faced an existential military threat from tens of thousands of British soldiers and heavy weapons, they were still willing to make concessions to the religious objections of some of their citizens to military service.
Governments have not always been so accommodating, and conscientious objectors have had to endure persecution and fight for accommodation.
An instance of the latter is a recent decision by a federal court in California involving doctors who do not want to participate in their patients’ suicides.
The case was brought by an organization of Christian doctors and a hospice physician who “routinely serves as the attending physician for terminally ill patients, and engages in discussions with terminally ill patients regarding their diagnosis, prognosis, and treatment options.”
They challenged an amendment to California’s assisted suicide law, which had initially provided that participation in physician-assisted suicide would be voluntary. A 2021 amendment to the law preserved this requirement in theory but also pulled objecting doctors into the assisted suicide process.
California’s law “permits a qualifying individual to obtain a prescription for an aid-in-dying drug after submitting two oral requests, a minimum of 48 hours apart, and a written request to his or her attending physician.” In other words, a patient cannot seek suicide drugs without making two documented requests. Receiving and documenting a request thus constitutes helping a patient in the process of getting those drugs.
The 2021 amendment, which went into effect this year, provides that a “non-participating health care provider’s [conscientious objector’s] documentation of an individual’s oral request for an aid-in-dying drug qualifies as one of the two oral requests required” by the law. The amendment requires these doctors to document the request even if that doctor does not want to participate “for reasons of conscience, morality, or ethics.” Thus, merely expressing opposition to participation advances the process towards suicide.
The plaintiffs in this case argued that requiring them to participate in the assisted suicide process violated a number of constitutional rights and asked the court to enjoin the law while their challenge to the law is heard.
The federal court noted: “The ultimate outcome of this requirement is that non-participating providers are compelled to participate in the Act through this documentation requirement, despite their objections to assisted suicide.” This, the court concluded, compelled speech from those (like the doctor challenging the law) who “believe it would violate his conscience and religious beliefs to participate in assisted suicide in any way.” That compulsion violated the First Amendment right of freedom of speech.
Why would governments be willing to forgo an opportunity to advance an important interest in order to accommodate a belief that most of the state’s citizens do not share, and may not even understand or agree with?
Society recognizes that it is fundamentally unfair to ask someone to do something that conflicts with their core beliefs if doing so is not absolutely necessary. Although we may not agree with a person’s estimation of how objectionable a particular act may be, we all sense that if someone else is not allowed to act on their beliefs, our own right may be the next infringed.
We also recognize that others may have moral insights that are valuable to society even if they are not widely shared. Even when we do not have the same scruples as another person, we can still see that those scruples could teach us something. Fellow citizens who believe that things accepted by the majority may be wrong can benefit even the majority with whom they disagree. They push us to question our own assumptions, help us recognize our own moral or cultural blind spots, and may prick our conscience in helpful ways. Someone who is not convinced it is wrong to eat meat can still recognize the legitimacy of concerns about animal mistreatment expressed by those opposed to eating meat.
Alternatively, we rightly suspect that governments that cannot or will not tolerate dissent do so because they harbor suspicions that their own position may be indefensible.
Preserving a culture of respect for conscience is critical to healthy societies and is a natural extension of religious freedom. The federal court decision in California constitutes a positive step in that direction.
Utah ranks sixth in report that examines 11 religious freedom safeguards such as healthcare conscience protections and other religious exemptions.
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