The Reasonability View and Institutional Conscience
The final distinctive context I will address is that of institutional conscience. In this section I discuss how the analysis I provide based on the Reasonability View applies to the question of whether corporations such
Further Developing the Reasonability View 165 as hospitals, pharmacies, or non-health-related organizations that provide wellness services to their employees through insurance plans ought to be eligible for conscientious exemptions. The reasonability analysis on my view does not apply in a straightforward way in this context to determine whether an objection defeats a prior prima facie duty to provide medical services since it is unclear what professional ethical obligations a corporation or health care institution possesses as compared to an individual medical practitioner. Medical providers are the focus of this book and constitute the core case because they most clearly possess the fiduciary obligation to heed the primacy tenet and provide requested care to patients (Section 1.6). By contrast, corporations do not take an oath and enter into a covenantal relationship to patients; one can reasonably argue that corporations have a fiduciary duty to their stockholders, not to their customers or patients. The Reasonability View therefore approaches this context a bit differently; since corporations are a legal construct, I will take the lead from several prominent legal cases that address the issue of conscientious objections by institutions. I will argue that the claim by corporations for conscientious exemptions is far weaker than the claim by individuals who possess reasonable objections. This discussion will shed light on the orthodoxy assumed in current discussions of law and policy related to protecting conscience in health care and will open the door to considering a new model for social policy in this area.
As discussed in Chapter 1, the federal government and many states have put conscience clauses into place to protect scruples-based refusals by health care providers. Some of these laws also cover health care institutions as well as individual medical professionals; the Church Amendments discussed in the previous section are a central example. In relevant part, this piece of legislation states:
The receipt of any grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] by any individual or entity does not authorize any court or any public official or other public authority to require—
- (2) such entity to—
- (A) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions (Church Amendments).11
While this federal US law extends conscience protections to health care “entities” or institutions, should we accept this idea? I will introduce thecentral issues surrounding the idea of institutional conscience through the two most important legal cases on the topic and will follow this with an ethical analysis of the topic by using leading ideas from the Reasonability View.
In Burwell v. Hobby Lobby Stores, Inc. (2014), the US Supreme Court upheld the rights of the owners of corporations not to provide insurance coverage for certain contraceptive methods, even though this was mandated by a generally applicable federal law. The Court held that this law violated the owners’ First Amendment rights to freely exercise their religion. The owners of Hobby Lobby and Conestoga Wood Specialties believed that four of the relevant contraceptive methods may kill human life post-fertilization, and this was in opposition to their religiously based moral beliefs. Specifically, the Green and Hahn families (the owners of the two closely held corporations, respectively) thought that Plan B and ella had post-fertilization effects, as did the intra-uterine devices (IUD) Paraguard and Mirena,12 and therefore opposed them on ethical grounds based on the belief that these kill embryonic life. The Hobby Lobby case actually addresses a quite narrow and technical question: do for-profit corporations fall within the ambit of the Religious Freedom Restoration Act (RFRA) of 1993’s prohibition on the government “substantially burdenfing] a person’s exercise of religion even if the burden results from a rule of general applicability” (Hobby Lobby)? RFRA states that the government can only substantially burden free exercise rights if “the Government demonstrates that the application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest” (Hobby Lobby). The Court held that the US government could not satisfy this two-pronged “strict scrutiny” test. Therefore, the owners’ free exercise rights were inappropriately violated when by offering health insurance to their employees they were compelled to cover “preventative care and screenings” that included the four contested methods of contraception (Hobby Lobby). I have made clear the precise issue in the Hobby Lobby case because I do not believe the case reaches the heart of the question about whether or not institutions themselves possess rights of conscience that may entitle them to conscientious exemptions. The Court focuses squarely on the free exercise rights of the owners (i.e. the Hahns and Greens) and not such putative rights possessed by a corporation simpliciter (i.e. Conestoga or Hobby Lobby). The following passage makes this focus clear:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of
Further Developing the Reasonability View 167 organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.
(Hobby Lobby)
Thus, the Court does not assume that corporations themselves are bearers of rights under RFRA or protections with regard to their conscience; in fact, the Court states just the opposite view here, holding that the rights extended to corporations have as their purpose the protection of the rights of human beings. Clearly the focus is on protecting the religious rights of the people, specifically the human owners who complete certain actions through the vehicle of the corporation. Since the US Supreme Court does not assume that corporate institutions simpliciter possess religious rights that may entitle them to conscientious exemptions, the Hobby Lobby case does not present the issue in its purest form, though it nicely sets the stage for the question we will consider.
The second case, however, does engage the main issue squarely. In the first iteration of Stormans v. Selecky (2007), the Court in its statement of the facts of the case writes:
Plaintiffs are two pharmacists and one corporate pharmacy. They seek to enjoin the enforcement of regulations making it sanctionable for a pharmacy to permit a pharmacist-employee to refuse to fill a lawful prescription because of religious or moral objections. . . . Plaintiffs’ faith informs them that life begins at conception.... Plan B prevents the fertilized egg from adhering to the wall of the uterus.... [and] They claim a right of conscience to refuse to dispense Plan B, and to instead refer the patient to a nearby pharmacy that will dispense the drug.
This raises the question of whether the Court, in stating that one of the plaintiffs is a corporate pharmacy and plaintiffs’ faith is that dispensing Plan B is wrong, is taking judicial notice of the idea that corporations have a faith and possess a conscience, perhaps derived in some way from the religious beliefs and conscience of its owners. The background of this case is that Washington State put in place a law which, contrary to most other extant legal policies, shifted the balance in favor of patient access and enforced professional obligation on the part of practitioners who objected to dispensing Plan B EC. I will focus primarily on the iteration of Stormans v. Selecky decided in 2012. At that time, the United States District Court struck down the Washington laws based on its interpretation and application of the Free Exercise Clause. I will first explicate the
Court’s main reasoning for their conclusion that pharmacies do not have to stock Plan B and pharmacists do not have to dispense such EC despite their genuine religious objections.13 I will present an ethical analysis to argue that on my position, it is much less clear that institutions should be entitled to conscientious exemptions as compared with human agents who profess conscience claims.
The central question in the Stormans case is whether the state of Washington can compel pharmacists and licensed pharmacies to stock and dispense emergency contraceptives, despite their sincere religious belief (and associated objection) that this would involve participation in terminating a human life (Stormans, 2012). There are two relevant Washington State rules. The first one (Washington Administrative Code 246-863-095) delineates a pharmacist’s professional responsibilities, and the second one (WAC 246-869-010) lays out pharmacies’ responsibilities. For our purposes, the latter is most important. One aspect of this second policy is the stocking rule, which demands that a pharmacy stock a “representative assortment of drugs in order to meet the pharmaceutical needs of its patients” (Stormans, 2012). The other aspect of this second policy is the delivery rule; this rule explains that pharmacies have a duty to deliver lawfully prescribed drugs or devices to patients in a timely manner, except for the following or substantially similar circumstances:
- (a) Prescriptions containing an obvious or known error, inadequacies in the instructions, known contraindications, or incompatible prescriptions, or prescriptions requiring action in accordance with WAC 246-875-040.
- (b) National or state emergencies or guidelines affecting availability, usage or supplies of drugs or devices;
- (c) Lack of specialized equipment or expertise needed to safely produce, store, or dispense drugs or devices, such as certain drug compounding or storage for nuclear medicine;
- (d) Potentially fraudulent prescriptions; or
- (e) Unavailability of drug or device despite good faith compliance with WAC 246-869-150 (Stormans, 2012).
After this rule was adopted, the Pharmacy Board in Washington interpreted the regulations in a letter. In this document, the Board explained that there was no right of conscientious objection, since “the pharmacy business must meet the patient’s needs onsite unless one or more of the exceptions described in the rule are present” (Stormans, 2007). Put in other words, on the Board’s interpretation, “the rule does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections” (Stormans, 2007). The upshot is that even a standard policy of “refuse and refer” was insufficient to satisfy the Washington regulations; the pharmacy must dispense
Further Developing the Reasonability View 169 the requested medications, though a narrow right of conscience is permissible for individual pharmacists if there was another pharmacist on shift at that pharmacy who would dispense the requested medication instead of the conscientious objector. After a series of legal maneuvers, a bench trial, and findings of fact, a ruling striking down the relevant state laws were rendered by the US District Court, Western District of Washington at Tacoma in February 2012.
The heart of the controversy in Stormans has to do with the claim by the plaintiffs that their constitutionally guaranteed First Amendment rights to free exercise of religion are improperly impinged upon by the Washington State rules. It would be wise, therefore, to first briefly elaborate on a few of the precedent-setting cases relating to the free exercise clause of the First Amendment decided upon by the US Supreme Court. As a form of religious exercise, do conscience-based refusals to dispense EC pass the traditional test for earning a religious accommodation? The answer to this question depends in significant part on the level of scrutiny applied to the law in question. Some laws implicating religious freedoms are considered to be directed laws. This means that it is reasonable to believe that their passage was intended to impact the religious exercise of a certain group, and such laws attract the highest level of suspicion, or “strict scrutiny” in legal parlance. Other laws are considered to be laws of general applicability. These laws are those that are deemed not to be directed at suppressing the religious behavior of others. These general laws instead garner a lower level of scrutiny, even though the law in question may place a burden on some who wish to exercise their religious beliefs. As long as this burden is simply an “incidental effect” of the law it is acceptable; the regulation in question must simply have a “rational basis” in order to be constitutional.
The US Supreme Court expounds upon these tests in Employment Division, Department of Human Resources of Oregon v. Smith. In this case, two men were terminated from their jobs with a private drug rehabilitation organization because of their use of peyote and as a result were denied unemployment benefits by the state of Oregon. They contended that this drug was taken as part of a religious ceremony in the Native American Church and as such their free exercise rights had been violated. In his discussion of the case, Justice Scalia imagines a law that required the payment of a tax even of those who believed this supported the sinful activities of an organized government. Such a law would be of general applicability and would be constitutional; as Scalia says in his opinion: “if prohibiting the exercise of religion ... is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision [then] the First Amendment has not been offended” (Smith).
What then would count as an example of a “directed” law aimed at the religious expression of adherents? The US Supreme Court case of Church of the Lukumi Babalu Aye v. City of Hialeah provides an example of acase in which citizens’ rights to freely exercise their religion were improperly restricted. The city of Hialeah, Florida passed a set of regulations that impacted the religiously inspired animal sacrifices performed by members of the Santeria religion. These laws were put in place after an emergency public session of the city council. The Court reviewed the minutes and taped excerpts of the city council session and found “significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice” as well as statements that Santeria was “a sin,” “foolishness,” “an abomination to the Lord,” and the worship of “demons” (1993). This led the Court to hold that the ordinances in question “had as their object the suppression of religion” and to ultimately conclude that the laws were not neutral and ran hence afoul of the Free Exercise Clause. Therefore, these laws were deemed unconstitutional and struck down by the Court in this case. The most demanding test of a law burdening religious exercise is the strict scrutiny test, which holds that a state law restricting religious practice is constitutional if the restriction both (1) furthers a compelling interest and (2) is narrowly tailored. Simply put, this test requires that since the law implicates religious expression, the interest on the part of the State that the law promotes must be of substantial significance and the law must choose the least restrictive option possible to promote that compelling interest.
The main reason the Stormans court blocked the Washington State laws as applied to pharmacies was because it accepted the plaintiff’s claim that the regulations were not neutral regarding religion. This implies that the Court found evidence that the law was put into place with an intention to burden the religious expression of medical professionals. The main line of argument concerned the history of the enactment of the regulations and the fact that these laws were specifically tied to Plan B. Evidence for this claim was adduced, including a letter by the Washington State Human Rights Commission (WSHRC) in which the WSHRC states that the drug at the center of the controversy surrounding pharmacists who do not wish to fill legal prescriptions was Plan B. Also referenced were the public words and actions of then Washington Governor Gregoire, who threatened to remove the entire Pharmacy Board if they adopted a rule that allowed denial on the basis of religious and moral beliefs of certain lawful prescriptions (again, with a presumed focus on Plan B). The Court concludes that these matters speak to the aim of the law and that pharmacists are placed in a position in which they must either dispense a drug that violates their religious beliefs or leave their present jobs in the state of Washington. Therefore, the Court held that the regulations targeted the religious practices of citizens and hence are not neutral and violated the free exercise rights of pharmacists subject to this law.
Notice that while the Stormans court does take up the matter of corporations themselves possessing a conscience, their argument is centered on the conscientious objection of practicing pharmacists. I think there are significant problems with the Court’s 2012 analysis in Stormans, but those points are otiose since on appeal, the District Court reversed in 2015 and found that the Washington State rules were facially neutral and satisfied the rational basis test (Stormans, 2012). The case was appealed to the US Supreme Court and was denied review (Stormans v. Weisman); hence the Washington State laws stand. Washington has one of the strictest laws in the U.S. mandating that pharmacy practitioners dispense EC despite opposing moral and religious beliefs. The Stormans court does address the question of whether corporations possess a conscience from a legal perspective, but they leave the question unresolved (Stormans, 2007). Let’s now turn to utilizing the reasonability analysis to analyze the matter involving institutional conscience from an ethical point of view.
In my view, the Washington State rules requiring pharmacies to stock Plan B and pharmacists to dispense it are compelling. This conclusion stems from the fact that the objections lodged by the owners of the corporation violate the empirical consonance condition (condition 12).14 The owners religiously objected to the Plan B and ella methods of EC on the basis that these medications may kill human life after fertilization. Yet as discussed earlier, the claim that EC acts via post-fertilization effects conflicts with the bulk of the relevant clinical evidence and therefore does not warrant an exemption in virtue of violating this intrinsic condition for reasonability. Let’s now focus specifically on institutional conscience. At the outset, the Stormans court presents unchallenged the premise that an incorporated pharmacy has a conscience (and hence conscience rights) by referring to the grounding belief that is the basis for the conscientious objection by the plaintiffs.15 This raises some perplexing questions. The oddness of ascribing conscientious scruples to corporate institutions is made clear if we recall the nature of conscience as discussed in Chapter 1. The Oxford English Dictionary defines conscience, in part, as:
The internal acknowledgement or recognition of the moral quality of one’s motives and actions; the sense of right and wrong as regards things for which one is responsible; the faculty or principle which judges the moral quality of one’s actions or motives.
(“Conscience”)
So for the connection in the case to work such that the notion of institutional conscience makes sense, we have to accept that (A) corporations have motives and beliefs and (B) institutions have a faculty by which they can judge the moral fit between their motives, beliefs and the actions they undertake. These are puzzling ideas.
Regarding (A), some thinkers have defended the idea that corporations have a kind of limited agency that can be made sense of by looking at the mission statement (say) of the corporation itself as a statement of its deepest aims and purposes (French). This is what Peter French calls the corporate internal decision (CID) structure, and French claims that corporations are moral persons who are responsible for their actions. While this idea is not completely implausible, it is highly questionable once we bring to mind obvious difficulties with the idea that corporations themselves can perform actions to carry out its beliefs. Idea (B) is even more difficult to stomach since there is no good reason to believe that institutions themselves recognize the morality or immorality of their decisions. While we might say that some internal control system of the corporation acknowledges that an action has been performed (e.g. a transaction generating X revenue), the corporation has no faculty by which it can bring the belief to mind, compare this relevant belief with the action in question, and then judge that the action is morally compatible or incompatible with said belief and is therefore right or wrong. In short, institutions seem to lack the associated capacities for having a conscience and therefore do not possess the relevant abilities to make claims of conscience that could entitle them to conscientious exemptions.
Second, consider religiously inspired conscientious beliefs in particular. The argument given prior may cut the idea of institutional conscience off at the knees, but say we grant for the sake of argument that we can somehow make sense of the idea of institutional capacities, motives, and beliefs. The scruples in the Stormans case are religious in nature; according to many religions, individuals face an awesome choice concerning what to believe and their choice affects their disposition in a future life or mode of existence. However, even religiously affiliated institutions do not face a similar choice or fate; it’s not as if the Roman Catholic Church itself will be condemned to hell if it endorses the use of Plan B and it turns out that this action is indeed not morally correct. Therefore, institutions themselves may not possess the interests typically involved in religiously inspired conscientious beliefs. Therefore, we see another problem with extending conscience claims to institutions, given the non-possession by corporations of the interests often implicated in religiously motivated scruples. At the very least, it is not as clear that institutions possess religiously inspired scruples when compared to individual human persons.
Finally, when thinking about institutional conscience objections we should recall the distinction between conscientious refusals and conscientious provisions of care. If we do so we will see a final problem with thinking that institutions have a conscience and hence are eligible for conscientious exemptions. While the Stormans case focuses on refusals, an individual’s conscientious beliefs can motivate him or her to provide care based on his or her scruples as an act of conscientious commitment, as I have argued (Section 2.4). Yet as I shall argue by appealing to a case study, this cannot be the case for institutions. One case of this sort, discussed by Elizabeth Sepper (2012), involves a woman 19 weeks pregnant who presents in the ED of a Catholic hospital suffering a miscarriage. The doctor recommends the medically indicated treatment—ending the pregnancy—and the patient accepts, yet the hospital ethics committee denies the doctor’s request given its conscientious moral opposition to abortion. This is the case even though the fetus will not survive given its gestational age; the committee’s reason is that there is still a heartbeat detected via ultrasound. In this case, the woman becomes septic, has a 106-degree fever and is profusely bleeding. This case mirrors the Savita H. case discussed earlier in this chapter, except here the doctor makes the decision to perform the uterine evacuation on conscientious grounds, stating that he cannot bear to watch the patient “dying before our eyes” (Sepper 1502). The patient spends another ten days in intensive care and survives, though she suffers permanent injuries. Sepper provides some enlightening empirical data on the conflicts that arise within institutions that claim religious values that are the basis for conscientious objection in medicine, and this will help us to see the final problem we will discuss with institutional conscience.
As Sepper reports, 43% of US physicians have worked in a religiously affiliated institution, and 20% report experiencing a clash between institutional policies that restrict care based on religious reasons and what they believed to be their duty to provide the best care to their patients. If we focus upon ob-gyns, the figure increases to over a third (37%) for those practicing in religious facilities and to a full 52% for those ob-gyns working in Catholic health care institutions (Sepper 1502). The upshot of these data is that there is a substantial need for medical providers to exercise conscientious commitment to provide care in religiously affiliated institutions to meet their fiduciary duties to patients. Individual human persons can act against institutional policies based on conscientious commitment, but institutions cannot. If an institution begins to offer a medical service it previously rejected on the basis of reasons of “conscience,” then it does not contravene its own policy but simply revises it. It is strange to say, therefore, that an institution can conscientiously act against its own policies. Yet as we have discussed, the nature of conscientious objection is both positive and negative. The salient point is that institutions can only act in ways appropriate to half of the nature of conscience—they can only engage in conscientious refusals but cannot have settled conscientious commitments that contravene their own policies—and therefore they cannot respect conscience holism. Implicit in condition E5 of the reasonability analysis is the notion that conscientious objectors can engage in conscientious commitment, even if in fact they do not choose to do so. Hence, even if we reach the conclusion that institutions themselves deserve to lodge claims of conscience, they can at most only respect half of the logical structure that supports conscientious refusals in the first place. This is an odd result stemming from an uncritical acceptance of the idea of institutional conscience.
At the very least, this point makes it much less clear that we should treat institutions like human persons in terms of both possessing a conscience and conscience protections. Corporations, unlike human individuals, cannot respect conscience holism. Yet if conscientious provision of care is part of the conceptual structure of conscientious objection in medicine and institutions cannot evince a full-throated conscientious commitment in conflict with their own policy, then the very notion of institutional conscience fails to engage half of the logical nature of conscientious objection. More broadly, I have argued in the last chapter that engagement in positive acts of conscientious commitment can be equally as justified (and perhaps more) as compared to acts of conscientious refusal if the objection and its basis are reasonable; an adequate theory of conscientious objection must be able to adequately address both refusals and conscientious commitment. This means that if, for example, there was a law in the US against providing emergency care to undocumented immigrants or instead requiring that providers must report undocumented persons to state or federal officials (which itself discourages seeking medical care), a physician acting on the basis of her moral value to provide care to all humans in need regardless of nationality in order to avoid unjustified harm coming to such populations could likely receive an accommodation. Failure to take positive action in unjust circumstances can itself be a form of moral blindness, and results such as this allow the Reasonability View to capture the progressive nature of medicine.
For the reasons I’ve offered in this chapter, we should possess serious doubts about whether institutions such as corporations can be eligible for conscientious exemptions. This final point makes it clear that our focus in this debate should remain on individual human beings—entities who can, unlike corporations, articulate and defend the reasoning behind their conscience objections and therefore can be eligible for conscientious exemptions—just as the Reasonability View does. Conscience clauses and law can be framed so as to treat corporations on a par with human persons regarding conscientious exemptions, but as we have seen, there is reason to think this is mistaken. Our social policy should move away from the current state of affairs in which there are different regulations regarding conscientious objection at the federal, state, and institutional level. My alternative policy suggestion to the orthodoxy of conscience clauses is elaborated and defended in the next chapter.
