ADF Alliance Alert

Religious Freedom

The Ever-expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle between Professional Duties and Moral Beliefs
Maxine M. Harrington, 34 Fla. St. U. L. Rev. 779 (2007)

This Article addresses the tension between the legal duties of health care providers to their patients and the right of those providers to refuse care on grounds of conscience. To aid in the analysis, this Article provides examples of several areas in which conflicts may arise. The argument offered here is not that rights of conscience have no place in health care or that collective professional standards always trump personal beliefs. To the contrary, health care providers should not be compelled to perform acts they find morally repugnant. To assert, however, that rights of conscience deserve absolute deference is to ignore the fact that, unlike employees in other sectors, health care providers, particularly physicians, have well-established legal and professional duties to their patients. It is one thing to allow individuals to refuse to participate in isolated procedures that they oppose on moral grounds, such as abortion. It is another to give broad immunity to professionals who refuse to give appropriate treatment or advice to their patients. Admittedly, this is a complex issue with no easy resolution, as health care providers may face a conflict between their personal beliefs and professional standards. Accommodating religious or moral beliefs in health professions requires a system that not only protects health care providers from coercion in the exercise of their moral conscience, but also one that ensures patients are not without recourse when treatment to which they are legally entitled is not provided.

Part II provides a brief background of conscience clauses and an overview of recent statutes and legislative proposals that expand the right of providers to refuse a broad spectrum of health care services. Part III examines whether legislative accommodations designed to remove a burden on the exercise of religion by providers are constitutionally required. Part III also explores decisions involving religious refusals of care by health care workers under Title VII and the implications of recognizing nonreligious objections under broad refusal laws. Part IV discusses potential conflicts that may arise between the legal duties of health care providers and rights of refusal afforded by expansive conscience clause legislation. Part V suggests several approaches to challenge refusal laws under the Establishment Clause and federal and state laws. Part VI concludes with some reflections on health care rights of conscience and proposes ways that legislators could reasonably balance the conflicting rights of providers and their patients, employers, and colleagues.

Legal Secularism in France and Freedom of Religion in the United States: A Comparison and Iraq as a Cautionary Tale
Fiona Deshmukh, 30 Hous. J. Int’l L. 111 (2007)

This Comment will explore the differences between the French and American approaches to freedom of religion and will evoke the specter of Iraq to warn against extreme deviation from the ideals of democracy as embodied in French laïcité and American free exercise. Because the American approach to free exercise provides the most freedom, this Comment will focus on the flawed French approach, as exemplified by the Headscarf Law, a law which actually tends to restrict religious freedom. Likewise, because the French approach to establishment of religion provides the most neutral–and therefore fair and democratic–approach to establishment, this Comment will focus on the flawed American approach in the two Ten Commandments cases.

Sanctity of Life

The Dysfunctional Progeny of Eugenics: Autonomy gone AWOL
Matthew D. Martin, 15 Cardozo J. Int’l & Comp. L. 371 (2007)

Part I of this article chronicles the history of the eugenics movement in the United States and its counterparts in Europe in the 1920s and 1930s, noting the disastrous consequences in Nazi Germany. When the horrors of the Holocaust surfaced following World War II, most of the Western nations abandoned eugenical sterilization procedures. However, in other countries, most recently the People’s Republic of China, sterilization policies became the de facto means of producing a limited, racially superior population. China does not always give families the same reproductive freedom as they might have in the West; in many cases the reproductive rights of families are beholden to the will of government officials. Part II will address this and other coercive measures taken by the Communist Chinese government to both limit population growth and eliminate the “abnormal” from society. At the turn of the twenty-first century, technological advances created an environment in which genetic abnormalities can be eradicated through the use of prenatal and pre-implantation genetic testing in addition to selective abortion. Part III will address this new form of eugenics made possible by such technological advances.

Redefining Stewardship over Body Parts
Elizabeth E. Appel Blue, 21 J.L. & Health 75 (2008)

This paper proposes one possible avenue for defining a framework to address body parts. I begin with the presumption that given the increasing use of body parts outside of our bodies, either after death or during life, society requires a framework with institutions and rules to govern our body parts. Yet there is no settled framework. Much of the controversy over differing approaches stems from whether people should be able to sell body parts. Thus, each potential framework implicitly addresses the question of monetary value. While multiple possibilities exist, the predominant models are (1) property, most often meaning ownership that permits monetary compensation; (2) stewardship, implying altruism and no monetary compensation to the donor; and (3) a compromise solution involving regulatory bodies, which could assign monetary value under certain circumstances.

Marriage & Family

Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty
Roger Severino, 30 Harv. J.L. & Pub. Pol’y 939 (2007)

Religious institutions will soon face serious legal risks that include the substantial possibility of civil liability and targeted exclusion from government benefits. Whether that risk translates into legal penalties will depend upon the outcome of a whole cascade of litigation; this Article aims merely to point out the contours of the emerging conflicts rather than predict the prevailing parties in each particular case. But, after much careful study, two results seem certain if same-sex marriage becomes generally accepted in law. First, neither side should be so confident of its legal position as to expect victory in every or almost every category of litigation described in this Article. Second, the inevitable litigation will be protracted, costly, and result in widespread legal confusion resulting in pervasive church-state conflict and a substantial chilling of religious expression.

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