Friday, August 22, 2008

Conscientious Objection Proposal

I've posted before about the collision between conscience and one's job, specifically about the rights of pharmacists to refuse to fill "objectionable" prescriptions. My commentary was primarily about a Washington State controversy with regards to pharmacists (which has since been resolved with the ruling that a pharmacist may refuse to fill a prescription if they can find a coworker who is willing to do so; otherwise, they must fill it). Now, however, there is a proposal to codify the conscience objection at a national level and more broadly than just physicians.

I won't rehash the arguments I made in my original post (though I still believe them to be valid), but I will add a few additional observations.

First, there is a distinction between what you choose to do as an individual, and what your employer chooses to offer. My McDonalds analogy in my earlier post is an example of this; I heard an even better anology on the radio today, saying that if you volunteer for the military, you can't say you object to the war in Iraq but not to the war in Afghanistan. If you object to the war, you have the option to not sign up for the military. But once you sign up, you don't get to decide in which aspects you will and will not participate.

Specifically, it is the employer's policy that prevails. If you are self-employed, super - you can make whatever decisions you like about what services you will and will not offer. But if you are employed, then by definition policies around services are the decision of the employer, not the employee. If you cannot abide by their policy, then there is no reason to offer job protection for you. Freedom of speech and freedom of religion are guaranteed by the government, but only apply as far as the government goes; private organizations (among other exceptions) have always had wide latitude to impose constraints on expression and practices that happen while people are on the job. This point was implicit in my original post, but I think it is worth making explicit the key underlying principle to my analogy.

The second observation is that we have long recognized limits on the practice of religion, the most notable of which is that one's freedom to practice religion stops at the point that it infringes on another's similar freedom. Doctors, pharmacists, etc., are there to service their customers; it is one thing for a doctor or pharmacist to express their objections to a particular practice or methodology, but if it is a service that their employer offers and expects of that particular employee, then the decision simply is not theirs to make. It is the patient's and solely the patient's decision. The employer can, of course, decide what services are on its menu, but it is untenable to require that all employers allow individual employees to make up their own individual deviations.

Finally, a key point that is missing in the Bush proposal seems to be any definition of what is and is not a valid objection of conscience. To pick a provocative example, Christian Identity is a splinter sect of Christianity with many racist adherants. If they were to interpret their faith to require different standards of care for black patients compared to white patients, would employers have to accomodate that? In my reading of the proposed rule, they would. I believe (hope?) that such accomodation would be abhorrant to all rational people, but as I understand the policy, it would allow for arbitrary declarations of moral objection. It would have to, actually: the basis of the proposed rule is explicitly grounded in a person's moral principles, and the first amendment pretty much requires that government (and courts) stay out of questions of validity of one religious view vs. another. Given that, it seems to me that anybody could claim any arbitrary objection that they wanted, and there would be no mechanism for challenging that.

That is clearly broken.

No comments: