April 26, 2004

April 26, 2004 | Commentary on Legal Issues

Balancing Conscience and the Law

In Wisconsin, a pharmacist who is a devout Christian refused to fill a woman's prescription for birth-control pills. He also refused to transfer the prescription to another pharmacy. He now faces disciplinary action.

In Texas, another pharmacist refused to fill the prescription for a morning-after pill requested by a rape victim - again, because of his religious convictions. Though Texas has a law that allows any doctor, nurse or hospital employee to opt out of an abortion procedure to which he or she has religious objections, it isn't clear whether the law covers pharmacists or morning-after pills. The Texas pharmacist has been fired.

These cases are not unusual. Other disputes involving pharmacists whose religious conscience will not allow them to fill a prescription have surfaced in a half-dozen other states. So the question naturally arises: How should the law react to these events? Such an inquiry requires us to examine the role of religion and law in the public square.

An understanding of American history would help. The journey of the Pilgrims to Massachusetts was a journey of religious conscience from the orthodoxy of Anglican England. So, too, was the journey of the Society of Friends to Pennsylvania.

Harlan Fiske Stone, later to be Chief Justice of the Supreme Court, drew on this history when he wrote: "Both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process."

As a society, we have long recognized the truth of Stone's words, refusing even to compel the religious conscience of objectors to serve in wartime. We exempt from combat service anyone who "by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Our civil rights laws prohibit discrimination on the basis of religious belief in any employment.

So, the answer from our history and the law is fairly clear. The answer we've given to those who are conscientious objectors to war should be the same answer we give those who are conscientious objectors to abortion. The principle of liberty of conscience must be a universal one, evenly applied across all religions and all beliefs, lest the government be in the uncomfortable and untenable position of choosing among disparate religious views and determining their legitimacy. We should no more compel a pharmacist to dispense birth control if it violates his conscience than, say, compel a prison guard to participate in an execution if religious objections cause him to oppose capital punishment.

That same history also allows us to draw appropriate lines. Freedom of conscience is a shield against compulsion, not a sword for religious orthodoxy. That is the beauty of the balance struck by the Free Exercise and Establishment clauses of the First Amendment. Those who bring their religion into the public square may not be compelled as the price of admission to abandon it.

But neither can they impose their views on others. Society may accommodate religious beliefs by, for example, not requiring a pharmacist to fill a prescription that violates his scruples. But the pharmacist cannot then impose his beliefs by refusing to identify an alternate source for medication whose dispensation remains a lawful, permissible activity.

To be sure, the balance is a delicate one. But it's a line we must draw faithfully if we are to remain true to our history and the law.

Paul Rosenzweig is a senior legal research fellow at The Heritage Foundation and an adjunct professor of law at George Mason University School of Law.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

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