The Oates Journal (ISSN: 1098-1446) is a publication of the Wayne E. Oates Institute addressing issues related to spirituality, ethics, and healing from the perspective of pastoral care and counseling.

HHS Secretary Mike Leavitt issued what amounted to an Administrative attack against and rejection of the position taken by the American College of Obstetricians and Gynecologists (ACOG) regarding the protection of health worker conscience. The debate has been raging since Neil Noesen, a pharmacist in Wisconsin, snatched a young woman’s prescription for over-the-counter contraceptives. He was claiming “conscientious objector” privilege in refusing to provide the contraceptives prescribed. He not only refused to fill the prescription, he also refused to return it to her so she could find a cooperative pharmacist, or to turn it over to another pharmacist who would be willing to assist her. A policeman had to intervene, recovering the prescription for the woman. The pharmacist wound up being fired for insubordination, since he refused his employer’s order to return the prescription.

Noesen took his issue to a neighboring state (MN) where a similar scene took place with similar results. He is a crusader with strong anti-contraceptive and anti-abortion sentiments. He was determined not to compromise his “conscience.” And he was finally arrested for disturbing the peace when he would not settle down and stop yelling at anyone who would listen.

Two guiding principles in medical ethics are at stake. The first is the a-priori obligation to care for the patient. The second often poses a dilemma when juxtaposed with the first: the physician or health care worker is not obliged to violate his or her conscience. Orin Hatch (R-ID) attached an amendment to Roe v. Wade in 1973 that assured that no physician would be required to perform an abortion. That protection for individual conscience has since been expanded to include contraceptives, whether or not they are abortifacients.

That leaves the patient in a quandary. She must then either find another provider or accept the refusal as a final barrier to her plans. Not many are willing to be denied a medical service that is perfectly legal and certainly ethically acceptable in her religious and moral frame of reference.

The “frames of reference” help to focus the religious/philosophical debate behind the scenes of this confrontation in the pharmacy. Traditional Roman Catholic teachings ban contraceptives for the faithful on the belief that no intentional interference with the generative process is morally acceptable. [Read the Vatican’s “Respect for Human Life in its Origin” (1988)]. To that doctrine is added the general affirmation that the role of woman or her purpose in God’s plan of creation is that she should be a mother (child-bearer, nurturer) and that she is to be obedient/subservient to her husband.

The woman in the story has a different theological/ethical perspective. She believes in something like the priesthood of each believer and that women are created equal with men in matters of conscience and/or other religious matters of faith and belief. Presumably, she would not be requesting contraceptives if she believed their use is wrong. She has a different theology than the pharmacist. But he has the power to refuse and she is only a client or consumer who cannot coerce him to fill the prescription. She is vulnerable to a refusal; he has power over her.

Even more, he has the ability to humiliate and cajole and thus depersonalize her over certain matters of religious belief and practice. The scenario is reminiscent of the battles of conscience during the Spanish Inquisition that lasted for 600 years. The Inquisitor was an agent of a male-dominated church whose office was to assure doctrinal conformity by the faithful in the Roman Empire (from Italy to Belgium and on to the United Kingdom). Baptists were dissenters claiming it is neither the government’s nor an external religious authority’s prerogative to make judgments against how their conscience is formed before God. The believer answers directly to God, not to an Inquisitor. But the dissenters were disenfranchised---they had neither religious nor legal protections against an imperial church in collusion with the political system.

Baptists were birthed in the context of dissent against the Imperial church that took not only their properties but their lives if they insisted on dissent instead of conformity. People like John Bunyan spent years in jail rather than accept the King’s terms for freedom. The protection of conscience is, of course, associated with religious liberty. The institutional protection for conscience against the tyranny of the state or the church is what is referred to as the separation of church and state. That arrangement of keeping the church from dictating sectarian doctrine to the state as public policy, and keeping the state from mandating certain religious precepts for all citizens was finally institutionalized in the Bill of Rights. The first of these rights is that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” That late 18th Century document still stands as the reminder of protections that rightly belong to conscience and the limits to be imposed on both government and churches regarding their freedoms toward one another.

The current controversy over contraception and abortion is thus part of a much older and larger debate. What has changed is the new aggressiveness on the part of coalitions of churches that are trying to change the terms by which religious groups may influence public policy or be protected for their opposition toward people of a different (religious) persuasion. Historically, the protection of conscience was for the benefit of the vulnerable and powerless. It was not an additional prerogative of the powerful who could punish the vulnerable.

The Leavitt proposal reflects the strategies of the coalition on the right that is trying to base public policy on (their) strong religious beliefs. Failing a full blown victory that would allow a total takeover of government legislation, the coalition adopts a number of small steps including that of conscientious objection as a way to keep others from exercising their own conscientious convictions. The battleground is over the critical issue of reproductive rights.

My contention is that the confrontation in the Wisconsin pharmacy was a re-enactment of the medieval actions of the Imperial church/state against the vulnerable believer. The pharmacist acted as Inquisitor to the woman. He was able to mock her religious persuasions and rebuke her efforts to act freely and consistently with her own beliefs and moral convictions. She sought to live without the interference of one who embraces an odious, alien religious perspective. Instead, her own decisions regarding life, liberty and the pursuit of happiness were treated with contempt and overruled by one who did not respect her conscientious convictions.

The pharmacist also violated professional standards for behavior in cases of such dilemmas. ACOG (American College of Obstetricians and Gynecologists) had ruled that professionals had no obligation to violate their own conscience when dealing with abortion or contraception. They did have an obligation to the patient, however, to the extent that she must not be denied her own moral judgment in the matter. Thus, a referral must be made.

The ACOG approach is widely supported by physicians, the American College of Pharmacy, and medical ethicists. Professional organizations like ACOG speak to and provide moral and clinical guidance based on a type of consensus that establishes norms for professional behavior. Without mandating any one solution, ACOG expressed a balanced and judicious resolution of the problem of conscience in health care.

The proposal from HHS would directly counter the ACOG rule and make it possible for health care workers to decide for themselves whether a particular action was against conscience and whether they could in good conscience refer to another provider. The net effect of the HHS rule would be to make the health care worker a law unto him/her self deciding just how far to extend the rule of conscience against others.

On its surface, the proposal seems an effort to extend the anti-choice agenda which is at the same time an anti-woman agenda since only women whose conscience is fashioned in a manner that permits and even requires responsible reproductive decision-making would request such assistance.

The first principle of medical ethics is that of patient autonomy. That is, the patient is to be respected and his or her decisions regarding acceptable treatments are to be honored. One’s body belongs to the person, the Supreme Court has ruled, and health care providers have a mandate not to touch the patient’s body without permission. They have a mandate to be respectful, to treat each patient as a person and with due regard to the impact on that patient should they be humiliated or otherwise spiritually, psychologically or physiologically injured.

Autonomy blends with justice in ethical thought since any injury to the person is also an issue of proper and appropriate protections. It is also a matter of a fair allocation of resources. Justice assures that she is not to be denied access to treatments or pharmaceuticals that are in her best interests. A physician had signed off on the prescription in the name of her health and well-being. Who, then, is in a position to countermand her decision and that of her physician?

Pastoral care concerns surface immediately from such confrontations. The mindset of a person who feels a need to dominate and humiliate a woman should be of critical interest. Oates explored such questions in Behind the Masks.

But care for the woman as person is the central ethical concern. Denying a woman reproductive services is an open assault on the patient. The damage to her self esteem may drive her to seek spiritual or psychological counsel or, even worse, into a retreat from normal interpersonal relations. When forced to do battle with health care workers, she may be deeply wounded and face a complex set of emotions that leave her with psychological and spiritual scars.

A great deal has been said about the supposed emotional damage a woman may suffer from having an abortion. Those charges are prejudicial, not evidence-based. The primary intent of such propaganda is to create fear and regret on the part of the woman. Former Surgeon General C. Everett Koop found no evidence of so-called post-abortion syndrome among women who aborted. But the campaign continues, designed as it is to create shame and thus to reduce the number of women who terminate a problem pregnancy.

Finally, religious liberty concerns go to the heart of the HHS proposal. It is unjust to force any woman to live by another person’s religious beliefs and moral judgments regarding procreative decisions. The Supreme Court has long since rejected the premise that Constitutional protections should be extended to the moment of conception and religious groups remain deeply divided over the moral status of the fetus, much less of an embryo.

But there is no question that the woman is a person on both legal and religious grounds. The Supreme Court thus established the rule that “personal autonomy and bodily integrity” are to guide reproductive decisions. As Casey declared “The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.” Her decision is to be based upon the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Her own destiny “must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” [Casey v. Southeastern Pennsylvania Planned Parenthood, 2188.]

The rule in law squares with the central principle in religious ethics, namely, the right to conscientious decisions free from authoritarian coercion. Critics see the proposal from HHS as an extension of the misguided notion that having a “conscientious conviction” is sufficient reason to deny liberties to those whose conscience is formed on different religious and moral grounds. The conscience of the “other” is to be respected and protected. The woman who requests reproductive services tests our ability to live by the moral contract that requires we respect the convictions of the other just as we would have the other respect our convictions when we disagree.

Dr. Paul D. Simmons is Clinical Professor of Ethics and Professionalism at the University of Louisville School of Medicine in Louisville, Kentucky. He is the author of the new book, Faith and Health: Religion, Science, and Public Policy.

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