Taking conscience seriously

Virginia Law Review

Volumn 98, Issue 7, 2012, Pages 1501-1575

  Sepper, Elizabeth ^a  

^a Washington University School of Law   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84871864622     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (270)

1. Lori R. Freedman et al., When There's a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals, 98 Am. J. Pub. Health 1774, 1777 (2008).
2. Debra B. Stulberg et al., Religious Hospitals and Primary Care Physicians: Conflicts Over Policies for Patient Care, 25 J. Gen. Internal Med. 725, 727 (2010).
3. Debra B. Stulberg et al., Obstetrician-Gynecologists, Religious Institutions, and Conflicts Regarding Patient Care Policies, 73 Am. J. Obstetrics & Gynecology, at e1, e4 (2012).
4. See generally Judith C. Applebaum & Jill C. Morrison, Hospital Mergers and the Threat to Women's Reproductive Health Services: Applying the Antitrust Laws, 26 N. Y. U. Rev. L. & Soc. Change 1, 3-14 (2000);
5. Lisa C. Ikemoto, When a Hospital Becomes Catholic, 47 Mercer L. Rev. 1087, 1090-118 (1996).
6. R. Alta Charo, The Celestial Fire of Conscience-Refusing to Deliver Medical Care, 352 New Eng. J. Med. 2471, 2471-72 (2005);
7. Judith F. Daar, A Clash at the Bedside: Patient Autonomy v. A Physician's Professional Conscience, 44 Hastings L. J. 1241, 1245-46 (1993);
8. B. M. Dickens & R. J. Cook, The Scope and Limits of Conscientious Objection, 71 Int'l J. Gynecology & Obstetrics 71, 72-76 (2000);
9. Rebecca S. Dresser, Freedom of Conscience, Professional Responsibility, and Access to Abortion, 22 J. L. Med. & Ethics 280, 280-81 (1994);
10. Kent Greenawalt, Objections in Conscience to Medical Procedures: Does Religion Make a Difference?, 2006 U. Ill. L. Rev. 799, 818-25;
11. Sylvia A. Law, Silent No More: Physicians' Legal and Ethical Obligations to Patients Seeking Abortions, 21 N. Y. U. Rev. L. & Soc. Change 279, 280-82 (1994);
12. Martha Minow, On Being a Religious Professional: The Religious Turn in Professional Ethics, 150 U. Pa. L. Rev. 661, 682-83 (2001);
13. Edmund D. Pellegrino, The Physician's Conscience, Conscience Clauses, and Religious Belief: A Catholic Perspective, 30 Fordham Urb. L. J. 221, 232 (2002).
14. Thaddeus Mason Pope, Legal Briefing: Conscience Clauses and Conscientious Refusal, 21 J. Clinical Ethics 163, 169 (2010) (noting almost all states allow healthcare providers to refuse end-of-life treatment to which they have conscientious objections);
15. Guttmacher Inst., State Policies in Brief: Refusing to Provide Health Services (May 1, 2012), available at http://www.guttmacher.org/statecenter/ spibs/spib-RPHS.pdf (highlighting such laws regarding abortion in forty-six states, contraception in thirteen states, and sterilization in eighteen states).
16. 42 U. S. C. § 300a-7 (b) (2) (2006) (stating that federal funding will not require an entity to provide any personnel or "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");
17. Katherine Franke & Elizabeth Sepper, Obama Rule Respects Religious Diversity and Employees' Dignity, U. S. News & World Rep., Feb. 9, 2012, http://www.usnews.com/debate-club/should-catholic-and-other-religious- institutions-have-tocover-birth-control/obama-rule-respects-religious-diversity- and-employees-dignity.
18. 61 Am. Jur. 2d Physicians, Surgeons, Etc. § 121 nn. 1-3 (2002).
19. See, e.g., Emergency Medical Treatment and Active Labor Act, 42 U. S. C. § 1395dd (2006). (2010);
20. Medicare Condition of Participation: Outpatient Services, 42 C. F. R. § 482.54 (2010);
21. Medicare Condition of Participation: Emergency Services, 42 C. F. R. § 482.55 (2010).
22. The Health Care Financing Administration defines "acceptable standards of practice" as those that "rely on published medical literature, a consensus of expert medical opinion, and consultations with their medical staff, medical associations, including local medical societies, and other health experts." Health Care Fin. Admin., Ctr. for Medicare & Medicaid Servs., Ruling No. 95-1 Part V (Dec. 1995).
23. 61 Am. Jur. 2d Physicians, Surgeons, Etc. § 121 nn. 5-7 (2002);
24. see also Maxine M. Harrington, The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34 Fla. St. U. L. Rev. 779, 804, 822 (2007).
25. 410 U. S. 113 (1973).
26. Taylor v. St. Vincent's Hosp., 369 F. Supp. p948, 951 (D. Mont. 1973).
27. 42 U. S. C. § 300a-7 (b) (1973) (effective October 20, 2000).
28. See, e.g., Ariz. Rev. Stat. Ann. § 36-3205 (C) (1) (2009) (West) ("[H]ealth care provider is not subject to criminal or civil liability or professional discipline for⋯ [f]ailing to comply with a decision or a direction [at the end of life] that violates the provider's conscience⋯. ");
29. N. J. Stat. Ann. § 2 A: 65A-3 (West 2000) ("The refusal to perform, assist in the performance of, or provide abortion services or sterilization procedures shall not constitute grounds for civil or criminal liability, disciplinary action or discriminatory treatment.").
30. See, e.g., Ala. Code § 22-8A-8 (b) (2006) ("No nurse, physician, or other health care provider may be required by law or contract in any circumstances to participate in the withholding or withdrawal of life-sustaining treatment if such person objects to so doing.");
31. Tenn. Code Ann. § 32-11-108 (a) (2007) (stating that a provider who cannot in good conscience comply with a living will shall inform the patient and assist in transfer but "shall not be subject to civil liability for medical care provided during the interim period until transfer is effectuated").
32. Federal law expressly allows Medicare providers to refuse to comply with advance directives as permitted under state law. Advance Directives: Requirements for Providers, 42 C. F. R. § 489. 102 (a) (1) (ii) (2011).
33. See, e.g., Haw. Rev. Stat. § 453-16 (e) (2011);
34. 20 Pa. Consol. Stat. § 5424 (2012).
35. See Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. Legal Med. 177, 197-98 (1993) (categorizing abortion-related clauses).
36. See, e.g., Va. Code Ann. § 18.2-75 (2009).
37. Ga. Code Ann. § 49-7-9 (2009).
38. See, e.g., 42 U. S. C. §§ 300a-7 (c), (e) (2006);
39. Ansonia Bd. of Educ. v. Philbrook, 479 U. S. 60, 68-69 (1986).
40. The Church Amendment does not create a private right of action, although a violation thereof can result in loss of federal funding. Cenzon-DeCarlo v. Mount Sinai Hosp., 626 F.3d 695, 699 (2d Cir. 2010).
41. *5.
42. This standard is met by costs like additional staffing or lost business. Trans World Airlines v. Hardison, 432 U. S. 63, 84 (1977).
43. James A. Sonne, Firing Thoreau: Conscience and At-Will Employment, 9 U. Pa. J. Lab. & Emp. L. 235, 242 (2007).
44. Three states include a narrow exception. Cal. Health & Safety Code § 123420 (a) (West 2006) (exempting employer when "person would be assigned in the normal course of business of any hospital, facility, or clinic to work in those parts of the hospital, facility, or clinic where abortion patients are cared for");
45. Ky. Rev. Stat. Ann. § 311.800 (5) (c) (LexisNexis 2011) (excluding facility "operated exclusively for the purposes of performing abortions or sterilizations");
46. 18 Pa. Consol. Stat. § 3213 (f) (1) (2000) (exempting "facility devoted exclusively to the performance of abortions").
47. see also Swanson, 597 P.2d at 709-10 (determining that the right to refuse is unqualified and does not require weighing interests of the employer).
48. 42 U. S. C. § 300a-7 (c) (2006).
49. Ky. Rev. Stat. Ann. §§ 311.800 (5) (b) - (c) (LexisNexis 2011) (prohibiting discrimination against individuals "on account of the willingness or refusal⋯ to perform or participate in abortion or sterilization" or "any statement or other manifestation of attitude by such person with respect to abortion or sterilization");
50. Mich. Comp. Laws § 333. 20184 (2008) (prohibiting discrimination against "an individual⋯ [who] previously participated in, or expressed a willingness to participate in, a termination of pregnancy").
51. Or. Rev. Stat. § 127.885 (2003).
52. For example, Washington's statute reads: No individual health care provider, religiously sponsored health carrier, or health care facility may be required by law or contract in any circumstances to participate in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion. No person may be discriminated against in employment or professional privileges because of such objection. Wash. Rev. Code § 48. 43.065 (2) (a) (2008).
53. With regard to abortion and end-of-life care, almost all states allow institutional refusal. See Natalie Langlois, Note, Life-Sustaining Treatment Law: A Model for Balancing a Woman's Reproductive Rights with a Pharmacist's Conscientious Objection, 47 B. C. L. Rev. 815, 838-39 (2006);
54. 42 U. S. C. § 300a-7 (b) (2) (A) (2006).
55. Wyo. Stat. Ann. § 35-22-410 (a) (v) (2011).
56. Cal. Prob. Code § 4734 (b) (West 2009).
57. A handful, however, limit the reach of institutional conscience clauses to private institutions, see Ark. Code Ann. § 20-16-304 (2006);
58. Me. Rev. Stat. tit. 22, § 1903 (4) (2004);
59. Tenn. Code Ann. § 68-34-104 (5) (2011)
60. or religious institutions, see Cal. Health & Safety Code § 123420 (c) (West 2006);
61. N. J. Stat. Ann. § 26:2H-65 (b) (West 2007).
62. It is generally agreed that the First Amendment neither prohibits nor requires exemptions for medical providers with moral or religious objections to generally applicable laws. Employment Division v. Smith, 494 U. S. 872, 879 (1990)
63. (holding that the right of free exercise does not relieve an individual of the obligation to comply with a "'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)'" (quoting United States v. Lee, 455 U. S. 252, 263 n. 3 (1982) (Stevens, J., concurring in judgment)));
64. See, e.g., Poelker v. Doe, 432 U. S. 519, 521 (1977) (holding that state may favor childbirth over abortion). Moreover, because of the state action requirement in U. S. constitutional law, constitutional doctrine cannot resolve the problems of conscience faced by providers in private institutions.
65. See generally Bruce G. Davis, Defining the Employment Rights of Medical Personnel Within the Parameters of Personal Conscience, 1986 Det. C. L. Rev. 847;
66. See, e.g., Robert Baker, Conscience and the Unconscionable, 23 Bioethics ii, iii-iv (2009) (concluding that refusal to refer to or to provide a service when no alternatives are available is unprofessional conduct);
67. Robert F. Card, Conscientious Objection and Emergency Contraception, 7 Am. J. Bioethics, 8, 9 (2007) (arguing that professionals have an ethical obligation to dispense emergency contraception);
68. Bernard M. Dickens, Ethical Misconduct by Abuse of Conscientious Objection Laws, 25 Med. Law 513, 517-19 (2006) (noting some conscience clauses allow unethical conduct).
69. William W. Bassett, Private Religious Hospitals: Limitations upon Autonomous Moral Choices in Reproductive Medicine, 17 J. Contemp. Health L. & Pol'y 455 (2001);
70. Kathleen M. Boozang, Deciding the Fate of Religious Hospitals in the Emerging Health Care Market, 31 Hous. L. Rev. 1429 (1995);
71. Julie D. Cantor, Conscientious Objection Gone Awry-Restoring Selfless Professionalism in Medicine, 360 New. Eng. J. Med. 1484, 1485 (2009);
72. Brietta R. Clark, When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict, 82 Or. L. Rev. 625 (2003);
73. Elena N. Cohen, Disclosing Religious Restrictions in Health Care: Balancing Individual and Institutional Preferences, 1 Gender Med. 8, 8 (2004);
74. Julian Savulescu, Conscientious Objection in Medicine, 332 Brit. Med. J. 294, 294 (2006);
75. Carson Strong, Conscientious Objection the Morning After, 7 Am. J. Bioethics 32, 32 (2007);
76. Martha S. Swartz, "Conscience Clauses" or "Unconscionable Clauses": Personal Beliefs Versus Professional Responsibilities, 6 Yale J. Health Pol'y L. & Ethics 269, 282-83 (2006);
77. Katherine A. White, Crisis of Conscience: Reconciling Religious Health Care Providers' Beliefs and Patients' Rights, 51 Stan. L. Rev. 1703 (1999);
78. Robin Fretwell Wilson, Essay: The Limits of Conscience: Moral Clashes Over Deeply Divisive Healthcare Procedures, 34 Am. J. L. & Med. 41 (2008).
79. Susan J. Stabile, When Conscience Clashes with State Law & Policy: Catholic Institutions, 46 J. Cath. Legal Stud. 137, 147 (2007) (recognizing "the fact that a Catholic institution serves or employs non-Catholics means that the Church's position is in some way being extended to non-Catholics").
80. Bernard M. Dickens & Rebecca J. Cook, Conscientious Commitment to Women's Health, 113 Int'l J. Gynecology & Obstetrics 163, 164 (2011).
81. Leora Eisenstadt, Separation of Church and Hospital: Strategies to Protect Pro-Choice Physicians in Religiously Affiliated Hospitals, 15 Yale J. L. & Feminism 135, 154 (2003);
82. Steph Sterling & Jessica L. Waters, Beyond Religious Refusals: The Case for Protecting Health Care Workers' Provision of Abortion Care, 34 Harv. J. L. & Gender. 463, 495 (2011).
83. The issue of patient conscience is largely beyond the scope of this Article, but for helpful analysis, see Kathleen M. Boozang, Divining a Patient's Religious Beliefs in Treatment Termination Decision-Making, 15 Temp. Pol. & Civ. Rts. L. Rev. 345 (2006);
84. April L. Cherry, The Free Exercise Rights of Pregnant Women Who Refuse Medical Treatment, 69 Tenn. L. Rev. 563 (2002).
85. Eugene Ogrod, Report of the Council on Medical Service 13-I-99: Definition of "Medical Necessity", Am. Med. Ass'n (1999), http://www.ama-assn.org/ama/pub/about-ama/our-people/ama-councils/ council-medical-service/reports-topic/medicaremedicaid.page.
86. Ill. Health Facilities and Servs. Review Bd., Application for Permit 10-014, West Suburban Med. Ctr., Oak Park, Ill., at 991, Mar. 18, 2010, available at http://www.hfsrb.illinois.gov/Apps/2010-03-18%2010- 014%20CON%202010-03-18%2010-014%20APPLICATION.pdf (claiming to "successfully operate[] faithbased hospitals in San Antonio, Texas and Worcester, Massachusetts while maintaining the values and mission of the founders of these facilities").
87. See, e.g., Ariz. Rev. Stat. Ann. § 15-1630 (2009)
88. (prohibiting abortions in state hospitals unless "necessary to save the life of the woman"). The Supreme Court has upheld prohibitions on the use of public facilities for abortions, provided there is an exception for therapeutic abortions. Webster v. Reprod. Health Servs., 492 U. S. 490, 507-11 (1989) (rejecting due process challenge);
89. Poelker v. Doe, 432 U. S. 519, 520-21 (1977) (per curiam) (rejecting equal protection argument).
90. Lois Uttley & Ronnie Pawelko, No Strings Attached: Public Funding of Religiously-Sponsored Hospitals in the United States 26(2002), available at http://www.mergerwatch.org/storage/pdf-files/bp-no-strings.pdf (describing an ob-gyn who, due to religious restrictions, was refused permission to admit a woman whose membranes ruptured at fourteen weeks to a hospital that recently merged with a Catholic hospital);
91. Catholic healthcare has more than 1400 long-term and other health facilities and 600 hospitals. Catholic Health Ass'n of the United States, A Passionate Voice for Compassionate Care 9, available at http://www.chausa.org/ WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=9370 (last visited Oct. 13, 2012).
92. It also includes sixty-one multi-institution health systems. Catholic Health Ass'n of the United States, Catholic Health Care in the United States 2, Jan. 2010, available at http://www.chausa.org/WorkArea/linkit.aspx? LinkIdentifier=id&ItemID=7830;
93. see also Joe Carlson, Seeking Catholic Cohesion: CHA Report Stresses Cooperation over Consolidation, ModernHealthcare.com, Aug. 16, 2010, http://www.modernhealthcare.com/article/20100816/MAGAZINE/100819940 ("Today the three largest not-for-profit hospital owners in the country are all Catholic⋯.").
94. United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services 3-4 (5th ed. 2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/ upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition- 2009.pdf [hereinafter ERDs]. Sometimes restrictions on providers extend outside the Catholic facility. For instance, an ob-gyn was placed under review by his Catholic employer for performing abortions at Planned Parenthood.
95. See, e.g., Am. Med. Ass'n, Opinion. 8.08 - Informed Consent (2006), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/ code-medicalethics/opinion808.page ("Physicians should sensitively and respectfully disclose all relevant medical information to patients.");
96. Am. Med. Ass'n, Opinion. 10.01 - Fundamental Elements of the Patient-Physician Relationship §§ (1) - (2) (1993), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/ code-medicalethics/opinion1001.page ("The patient has the right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives.");
97. Am. Med. Ass'n, Principles of Medical Ethics, at VIII (2001), available at http://www.amaassn.org/ama/pub/physician-resources/medical-ethics/code- medical-ethics/principles-medicalethics.page ("A physician shall, while caring for a patient, regard responsibility to the patient as paramount.");
98. Am. Nurses Ass'n, Code of Ethics for Nurses §§ 1.1, 1.4(2001), available at http://www.nursingworld.org/MainMenuCategories/EthicsStandards/ CodeofEthicsfor Nurses/Code-of-Ethics.pdf ("Patients have the moral and legal right⋯ to be given accurate, complete and understandable information⋯.").
99. NARAL Pro-Choice Mass., Press Release, Access to Emergency Contraception in MA Hospitals Declines, Dec. 2008, available at http://www.prochoicemass.org/ media/echosp2008.shtml (reporting that despite legal requirements only fifty-six percent of Massachusetts Catholic hospitals offer rape victims emergency contraception).
100. Am. Med. Ass'n, Opinion. 8.082 - Withholding Information from Patients (2006), available at http://www.ama-assn.org/ama/pub/physician-resources/ medical-ethics/code-medical-ethics/opinion8082.page.
101. See Lawrence E. Singer, Does Mission Matter?, 6 Hous. J. Health L. & Pol'y 347, 353-57 (2006) (explaining criteria, including a religious order's sponsorship, that make healthcare facilities Catholic).
102. Health System Bans Abortions in Facilities, Med. Ethics Advisor, Apr. 1, 1998, http://www.highbeam.com/doc/1G1-206673157.html (reporting that, following the merger of Catholic Medical Center and Elliot Hospital into Optima Healthcare, abortion was prohibited at both facilities);
103. see also Brownfield v. Daniel Freeman Marina Hosp., 256 Cal. Rptr. 240 (Cal. Ct. App. 1989) (considering claim by rape victim against Catholic hospital for denying emergency contraception and counseling).
104. See, e.g., John C. Grossmeier, Adopting and Implementing a Policy Governance Model, 52 J. Healthcare Mgmt. 343, 344 (2007) (discussing merger of Catholic and non-Catholic hospitals into community's largest employer and six counties' sole community provider).
105. Harris Meyer, Catholic Directive May Thwart End-Of-Life Wishes: Bishops Cite 'Obligation' for Using Feeding Tubes at Religious Facilities, Kaiser Health News, Feb. 27, 2010, http://www.kaiserhealthnews.org/Stories/2010/February/24/ Catholicdirective-may-thwart-end-of-life-wishes.aspx (discussing end-of-life care restrictions in Catholic health systems);
106. see also Debran Rowland, The Boundaries of Her Body: The Troubling History of Women's Rights in America 290 (2004) (noting reports that, during mergers, Catholic partners sometimes assured secular facilities that abortions for life-threatening conditions would be allowed, only to later delay or deny them);
107. Reed Abelson, Catholic Gains in Health Care Include Strings, N. Y. Times, Feb. 21, 2012, at A1.
108. Leigh Page, Abortion Showdown Again Puts Catholic Hospitals at Odds With Church; More Catholic Healthcare West Hospitals May be Targeted, Becker's Hosp. Rev., Dec. 23, 2010, available at http://www.beckershospitalreview.com/ hospitalfinancial-and-business-news/abortion-showdown-again-puts-catholic- hospitals-atodds-with-church-more-catholic-healthcare-west-hospitals-may-be- targeted.html.
109. Rachel Benson Gold, Hierarchy Crackdown Clouds Future of Sterilization, EC Provision at Catholic Hospitals, 5 Guttmacher Inst. Rep. Pub. Pol'y 11, 12(2002), available at http://www.guttmacher.org/pubs/tgr/05/2/gr050211.pdf (noting that the revised directives designate sterilization as "intrinsically immoral", calling into question at least forty Catholic facilities' arrangements allowing sterilization).
110. Editorial, A Matter of Life or Death, N. Y. Times, Dec. 23, 2010, at A32 (noting that St. Joseph's Hospital in Phoenix was stripped of its Catholic status after it performed an abortion to save a woman's life and refused to agree to the bishop's demand never to perform a life-saving abortion again);
111. Joe Carlson, Catholic Hospitals Under Scrutiny: Observers Question if Facilities Are Performing Birth-Control Procedures, ModernHealthcare.com, Mar. 15, 2010, available at http://www.modernhealthcare.com/article/20100315/ MAGAZINE/100319992 (reporting that the ninety-two-year Catholic sponsorship of one of Oregon's largest hospitals ended over sterilizations).
112. Douglas C. Langston, Conscience and Other Virtues: From Bonaventure to Mac-Intyre 2 (2001) (noting these constitute the most direct "source for our present understanding of conscience").
113. Darlene Fozard Weaver, Conscience: Rightly Formed and Otherwise, 132 Commonweal 10, 11 (2005).
114. Definitions of conscience at the time of the Founding reflect its philosophical basis. See, e.g., Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1493 (1990) (compiling definitions such as Noah Webster's "natural knowledge, or the faculty that decides on the right or wrong of actions in regard to one's self", James Buchanan's "testimony of one's own mind", and Samuel Johnson's "knowledge or faculty by which we judge of the goodness or wickedness of ourselves").
115. Daniel P. Sulmasy, What Is Conscience and Why Is Respect for It So Important?, 29 Theoretical Med. & Bioethics 135, 138 (2008) (noting that conscience "unifies the cognitive, conative, and emotional aspects of the moral life by a commitment to integrity or moral wholeness").
116. Douglas Langston, Medieval Theories of Conscience, Stanford Encyclopedia of Phil., July 7, 2011, http://plato.stanford.edu/entries/conscience-medieval/ (noting the medieval view "regard[ed] human beings as capable of knowing in general what ought to be done and applying this knowledge through conscience to particular decisions about action").
117. Thomas Aquinas, Summa Theologica 678, pt. I, Question 79, art. 13 (Fathers of the English Dominican Province trans., 1920), available at http://www.newadvent.org/summa/1079.htm ("[C]onscience may be resolved into cum alio scientia, i.e., knowledge applied to an individual case. But the application of knowledge to something is done by some act. Wherefore from this explanation of the name it is clear that conscience is an act.");
118. Charles E. Curran, Conscience in the Light of the Catholic Moral Tradition, in Conscience: Readings in Moral Theology No. 14, at 3, 3 (Charles E. Curran ed., 2004) ("Conscience is generally understood as the judgment about the morality of an act to be done or omitted or already done or omitted by the person. ").
119. Vatican II, Dignitatis Humanae ¶ 3(1965), available at http://www.consciencelaws.org/issues-ethical/ethical045.html
120. see also 1 Hannah Arendt, The Life of the Mind 186 (1978) (arguing for the importance of being consistent with oneself, which Socrates epitomizes);
121. Michael G. Baylor, Action and Person: Conscience in Late Scholasticism and the Young Luther 254 (1977) (noting that "Luther continued to assert the principle that it is always wrong to act against conscience");
122. Thomas E. Hill Jr., Four Conceptions of Conscience, in Integrity and Conscience 13, 17 (Ian Shapiro & Robert Adams eds., 1998)
123. James F. Childress, Conscience and Conscientious Actions in the Context of MCOs, 7 Kennedy Inst. of Ethics J. 403, 404 (1997);
124. see also Mark R. Wicclair, Conscientious Objection in Medicine, 14 Bioethics 205, 213 (2000)
125. Jeffrey Blustein & Alan R. Fleischman, The Pro-Life Maternal-Fetal Medicine Physician: A Problem of Integrity, 25 Hastings Ctr. Rep. 22, 22 (1995).
126. Martha C. Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality 52 (2008) (explaining that Roger Williams, Stoic natural law doctrines, and many Christian sects in the American colonies viewed conscience as something "infinitely precious" possessed equally by all);
127. Martin Benjamin, Conscience, in 1 The Encyclopedia of Bioethics 513, 514
128. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245, 1268 (1994) ("[T]his pull toward rectitude becomes a central, dominating feature of a person's motivation and selfidentity.");
129. Immanuel Kant, The Metaphysical Elements of Ethics, in The Critique of Pure Reason, the Critique of Practical Reason, and Other Ethical Treatises, The Critique of Judgement 363, 375 (Encyclopedia Britannica 1952) (1780) (noting that "when a man is conscious of having acted according to his conscience, then, as far as regards guilt or innocence, nothing more can be required of him, only he is bound to enlighten his understanding as to what is duty or not").
130. Yossi Nehushtan, Secular and Religious Conscientious Exemptions: Between Tolerance and Equality, in Law and Religion in Theoretical and Historical Context 243, 245 (Peter Cane et al. eds., 2008) (describing accommodation of a person's conscience as "always reflect[ing] respect for his autonomy and personhood");
131. Steven D. Smith, What Does Religion Have to Do with Freedom of Conscience?, 76 U. Colo. L. Rev. 911, 935 (2005)
132. See Thomas Aquinas, On Conscience: Disputed Question on Truth 17, in Thomas Aquinas: Selected Writings 217, 233 (Ralph McInerny ed. & trans., 1998) ("That conscience binds means that when one does not follow it he incurs sin. ");
133. Catechism of the Catholic Church, pt. 3, art. 6, ch. I, ¶ 1778(1993), available at http://www.vatican.va/archive/ENG0015/-P5Z.HTM (quoting Cardinal John Henry Newman for the proposition that "[c]onscience is the aboriginal Vicar of Christ");
134. Richard P. McBrien, Catholicism 973 (1994) ("If⋯ after appropriate study, reflection, and prayer, a person is convinced that his or her conscience is correct, in spite of a conflict with the moral teachings of the Church, the person not only may but must follow the dictates of conscience rather than the teachings of the Church.");
135. Brian V. Johnstone, Conscience and Error, in Conscience: Readings in Moral Theology No. 14, at 163, 166 (Charles E. Curran ed., 2004) (arguing that this teaching on "erroneous conscience was widely accepted by moral theologians in the 19th century and into the present").
136. Vatican II, Constitution on the Church in the Modern World ¶ 17 (1965)
137. John Rawls, A Theory of Justice 181 (1999);
138. See Nadia N. Sawicki, The Hollow Promise of Freedom of Conscience, 33 Cardozo L. Rev. 1389, 1448 (2012)
139. 410 U. S. 113, 116 (1973).
140. J. M. Westfall et al., Abortion Attitudes and Practices of Family and General Practice Physicians, 33 J. Fam. Prac. 47, 50 (1991) (finding that only eight percent of U. S. physicians believe abortion is always wrong).
141. See Carole Joffe, Dispatches from the Abortion Wars: The Costs of Fanaticism to Doctors, Patients, and the Rest of Us 17-18 (2009);
142. Stephen Wear et al., Toleration of Moral Diversity and the Conscientious Refusal by Physicians to Withdraw Life-Sustaining Treatment, 19 J. Med. & Phil. 147, 153 (1994)
143. Sonia Mateu Suter, The Routinization of Prenatal Testing, 28 Am. J. L. & Med. 233, 251-54 (2002)
144. U. S. "Baby Business" (Infertility Services) Worth $4 Billion, PRWeb, Aug. 17, 2009, http://www.prweb.com/releases/2009/08/ prweb2750574.htm (reporting market research showing the average fertility clinic takes in $3.2 million in revenue).
145. 497 U. S. 261, 343 (1990) (Stevens, J., dissenting).
146. David A. Asch et al., The Limits of Suffering: Critical Care Nurses' Views of Hospital Care at the End of Life, 45 Soc. Sci. & Med. 1661, 1665 (1997);
147. see, e.g., John F. Kennedy Mem'l Hosp. v. Bludworth, 452 So. 2d 921, 923 (Fla. 1984) (describing view of medical technology as "a means of prolonging the dying process rather than a means of continuing life").
148. Welsh v. United States, 398 U. S. 333, 339-40 (1970).
149. Also, the Equal Employment Opportunity Commission ("EEOC") has adopted this construction of discrimination based on religion for the purpose of Title VII. EEOC Compliance Manual 12-IA1, at 7(2008), available at http://www.eeoc.gov/policy/docs/religion.pdf ("Religious beliefs include theistic beliefs as well as non-theistic 'moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.'").
150. Brophy v. New England Sinai Hosp., 497 N. E.2d 626, 639 (Mass. 1986) (noting a policy of refusing to withhold a feeding tube based on principles "recognized and accepted within a significant segment of the medical profession and the hospital community").
151. Watkins v. Mercy Med. Ctr., 364 F. Supp. 799, 800 (D. Idaho 1973). More recently, a Catholic hospital in Illinois asked a doctor who performed abortions outside the facility to step down as chief of the Obstetrics-Gynecology Department.
152. Women's Law Ctr., Below the Radar: Health Care Providers' Religious Refusals Can Endanger Pregnant Women's Lives and Health 8, Jan. 2011, available at http://www.nwlc.org/sites/default/files/pdfs/nwlcbelowtheradar2011.pdf ("Dr. Y, practicing in a Catholic-affiliated hospital in California, said she often takes patients aside and reviews all of their treatment options⋯. She reported that other physicians at the hospital offer referrals and information 'under the radar' as well.").
153. see also Richard T. De George, The Moral Responsibility of the Hospital, 7 J. Med. & Phil. 87, 98 (1982)
154. For a general critique, see Frances Howard-Snyder, Doing vs. Allowing Harm, Stanford Encyclopedia of Philosophy, Dec. 20, 2007, http://plato.stanford. edu/entries/doing-allowing/ (discussing philosophical theories that distinguish doing from allowing harm and concluding that "there is no decisive reason to say that any of these distinctions is morally significant" and these intuitions lie in "other morally significant distinctions (distinctions concerning intentions, difficulty or ease of avoiding the harm, etc.) ");
155. see also Archie v. City of Racine, 847 F.2d 1211, 1213 (7th Cir. 1988)
156. See Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996)
157. rev'd, 521 U. S. 793 (1997) (rejecting act-omission distinction between assisting suicide and withholding treatment).
158. John Coggon, On Acts, Omissions and Responsibility, 34 J. Med. Ethics 576, 577 (2008).
159. Andrew Jameton, Nursing Practice: The Ethical Issues 6 (1984). Empirical studies of moral distress commonly document end-of-life treatments that could be described as either actions or omissions (including overtreating a patient, keeping hopelessly ill people attached to respirators, and inadequately medicating pain).
160. Mary C. Corley et al., Nurse Moral Distress and Ethical Work Environment, 12 Nursing Ethics 381, 382 (2005);
161. Ellen H. Elpern et al., Moral Distress of Staff Nurses in a Medical Intensive Care Unit, 14 Am. J. Critical Care 523, 526 (2005).
162. Mark R. Wicclair, Negative and Positive Claims of Conscience, 18 Cambridge Q. Healthcare Ethics 14, 16 (2009).
163. Allan S. Brett, Problems in Caring for Critically and Terminally Ill Patients: Perspectives of Physicians and Nurses, 14 HEC Forum 132, 140 (2002) (fifty-five percent of providers compared to twelve percent);
164. Mildred Z. Solomon et al., Decisions Near the End of Life: Professional Views on Life-Sustaining Treatments, 83 Am. J. Pub. Health 14, 16 (1993) (four times as many concerned about overtreatment than undertreatment);
165. Mildred Z. Solomon et al., New and Lingering Controversies in Pediatric End-of-Life Care, 116 Pediatrics 872, 877 (2005)
166. See, e.g., Gray v. Romeo, 697 F. Supp. 580, 588 n. 4 (D. R. I. 1988) ("No analytical difference exists between withholding and withdrawing medical treatment.");
167. Bartling v. Superior Court, 209 Cal. Rptr. 220, 226 n. 8 (Cal. App. Dep't Super. Ct. 1984)
168. Frazee v. Ill. Dep't of Emp. Sec., 489 U. S. 829, 832 (1989).
169. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U. S. 520, 531 (1993).
170. See, e.g., FCC v. AT&T, 131 S. Ct. 1177 (2011)
171. Immanuel Kant, The Metaphysics of Morals 189 (Mary Gregor ed., 1996) (1797) ("Every human being has a conscience.");
172. See generally Thomas A. Nairn, Institutional Conscience Revisited: Catholic Institutions and Christian Ethics, New Theology Rev., May 2001, at 39;
173. Edmund D. Pellegrino, The Ethics of Collective Judgments in Medicine and Health Care, 7 J. Med. & Phil. 3 (1982);
174. Kevin W. Wildes, Institutional Identity, Integrity, and Conscience, 7 Kennedy Inst. Ethics J. 413, 416-17 (1997).
175. Contra George J. Annas, At Law: Transferring the Ethical Hot Potato, 17 Hastings Center Rep. 20, 21 (1987) ("Hospitals are corporations that have no natural personhood, and hence are incapable of having either 'moral' or 'ethical objections' to actions."). Although developing a theoretical argument for or against corporate conscience is outside the scope of this Article, it merits further consideration by philosophers and legal scholars alike.
176. See, e.g., Rogene A. Buchholz & Sandra B. Rosenthal, Integrating Ethics All the Way Through: The Issue of Moral Agency Reconsidered, 66 J. Bus. Ethics 233, 234-35 (2006) (summarizing debates);
177. Geoff Moore, Corporate Moral Agency: Review and Implications, 21 J. Bus. Ethics 329, 331-32 (1999) (same). It is important to note, however, that business ethics discussions treat corporate social responsibility and the propriety of integrating ethics into business. They thus focus largely on whether corporations can be held morally responsible (rather than on whether corporations are morally entitled to legislative exemptions). 162 Proponents of corporate moral responsibility also define moral agency in terms of corporate decisionmaking structures.
178. Peter A. French, Collective Responsibility and the Practice of Medicine, 7 J. Med. & Phil. 65, 69 (1982) (noting the importance of intentionality and decisionmaking structures to corporate moral agency);
179. Kenneth E. Goodpaster & John B. Mathews, Jr., Can a Corporation Have a Conscience?, Harv. Bus. Rev., Jan.-Feb. 1982, at 132, 134-35 (defining moral agency to require rationality and awareness of effect of one's decisions on others);
180. Michael D. Smith, The Virtuous Organization, 7 J. Med. & Phil. 35, 37-38 (1982) (focusing on capability of deciding and acting). The corporation's decisions acquire a moral character in that they affect human beings.
181. See, e.g., Richard T. De George, The Moral Responsibility of the Hospital, 7 J. Med. & Phil. 87, 87 (1982) (defining moral agency as established when hospitals act rationally, choose between alternatives, and affect human beings).
182. Ana Smith Iltis, Institutional Integrity in Roman Catholic Health Care Institutions, 7 Christian Bioethics 95, 98-102 (2001);
183. Kevin W. Wildes, Institutional Integrity: Approval, Toleration and Holy War or "Always True to You in My Fashion", 16 J. Med. & Phil. 211, 214-15 (1991).
184. Ky. Rev. Stat. Ann. § 311. 800 (LexisNexis 2011);
185. see also N. J. Stat. Ann. § 26:2H-65 (West 2007) (noting institutional "policies and practices");
186. N. M. Stat. Ann. § 24-7A-7 (West 2011) (noting a "policy of the health-care institution that is expressly based on reasons of conscience").
187. Miss. Code Ann. § 41-107-3 (h) (2009);
188. see also 745 Ill. Comp. Stat. 70/11 (2010) ("[A]s documented in its existing or proposed ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents⋯.").
189. 497 N. E.2d 626, 639 (Mass. 1986);
190. see also Delio v. Westchester Cnty. Med. Ctr., 516 N. Y. S.2d 677, 693 (N. Y. App. Div. 1987).
191. Many business ethics and philosophy scholars who argue in favor of corporate moral agency indicate that moral personhood, inherent to human beings, must be distinguished from the limited moral agency of a corporation. Peter A. French, Corporate Ethics 10 (1995) (admitting his initial use of the term "person" may have confused the issue);
192. Rita C. Manning, Corporate Responsibility and Corporate Personhood, 3 J. Bus. Ethics 77, 77 (1984) (arguing that the concept of personhood is beyond what we can attribute to corporations);
193. David T. Ozar, Do Corporations Have Moral Rights?, 4 J. Bus. Ethics 277, 279-80 (1985)
194. 497 U. S. 261 (1990).
195. Sandra Johnson, The Catholic Bishops, the Law, and Nutrition and Hydration: An Historical Footnote, 19 Annals Health L. 97, 99-100 (2010).
196. Daniel Burke, Phoenix Controversy Highlights Rift Between Catholic Hospitals and Church Leadership, Huffington Post, Dec. 23, 2010, http://www.huffingtonpost.com/2010/12/23/abortion-debate-opens-rif-n-800494. html.
197. Robert K. Vischer, Conscience and the Common Good: Reclaiming the Space Between Person and State 179 (2009) ("[T]he corporation serves as a venue and vehicle for the sharing of conscience-driven claims."). This tracks another perspective in the corporate moral responsibility debate.
198. See, e.g., M. G. Velazquez, Why Corporations Are Not Morally Responsible for Anything They Do, in Contemporary Issues in Business Ethics 114, 114-15 (J. R. Des Jardins & J. J. McCall eds., 1983) (arguing that
199. Suzanne Davis & Paul Lansing, When Two Fundamental Rights Collide at the Pharmacy: The Struggle to Balance the Consumer's Right to Access Contraception and the Pharmacist's Right of Conscience, 12 DePaul J. Health Care L. 67, 100 (2009);
200. see also Steven H. Miles et al., Conflicts Between Patients' Wishes to Forgo Treatment and the Policies of Health Care Facilities, 321 New Eng. J. Med. 48, 49 (1989)
201. At least one court has expressed the view that the medical staff should be included in making ethical decisions. In re Requena, 517 A.2d 886, 892 (N. J. Super. Ct. Ch. Div. 1986)
202. Colin P. Marks, Jiminy Cricket for the Corporation: Understanding the Corporate "Conscience", 42 Val. U. L. Rev. 1129, 1148 (2008).
203. 253 Cal. Rptr. 530, 531 (Cal. Ct. App. 1988).
204. Ariz. Rev. Stat. Ann. § 36-2154 (A) (2011).
205. Planned Parenthood, Mission and Values of Planned Parenthood of New York City, http://www.plannedparenthood.org/nyc/mission-values-14915.htm (last visited June 5, 2012).
206. Elliott N. Dorf, End-of-Life: Jewish Perspective, 366 Lancet 862, 863 (2005) (discussing conflicting positions within Judaism over end-of-life care).
207. Compare Episcopal Health Services, http://www.ehs.org/ (last visited June 5, 2012) (noting commitment to quality healthcare and patient safety "overseen by the Bishop of Long Island and guided by the teachings and traditions of the Episcopal Church")
208. with St. Francis Care, http://www.stfranciscare.org/About-Us/Our-Mission- and-Core-Values.aspx (last visited June 5, 2012) (noting commitment "to health and healing through excellence, compassionate care and reverence for the spirituality of each person" under the authority of the Catholic Archdiocese of Hartford, Connecticut).
209. It is not clear whether 42 U. S. C. § 2000e-1(2006), which allows religious organizations to give employment preference to members of their own religion, provides recourse against the enforcement of conscience clauses for facilities that qualify as religious organizations.
210. Cynthia K. Hosay, Compliance with Patients' End-of-Life Wishes by Nursing Homes in New York City with Conscience Policies, 44 Omega: J. Death & Dying 57, 69 (2002).
211. See, e.g., Elbaum by Elbaum v. Grace Plaza of Great Neck, 544 N. Y. S.2d 840, 848 (App. Div. 1989).
212. Merger Watch, Working with the Community: Hospital Merger Compromises that Protect Patients 2-3, Dec. 2005, http://www.mergerwatch.org/storage/ pdffiles/ch-compromises.pdf (documenting an array of compromises adopted to ensure continuity of services);
213. 223 F.3d 220, 223 (3d Cir. 2000).
214. Jill Morrison & Micole Allekotte, Duty First: Towards Patient-Centered Care and Limitations on the Right to Refuse for Moral, Religious or Ethical Reasons, 9 Ave Maria L. Rev. 141, 160-61 (2010).
215. Thomas W. Dunfee, The Marketplace of Morality: First Steps Toward a Theory of Moral Choice, 8 Bus. Ethics Q. 127 (1998).
216. Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, 17 Stan. L. & Pol'y Rev. 83, 86, 93 (2006).
217. See Michael A. Rie, Defining the Limits of Institutional Moral Agency in
218. See, e.g., Gray v. Romeo, 697 F. Supp. 580, 591 (D. R. I. 1988)
219. In re Jobes, 529 A.2d 434, 450 (N. J. 1987)
220. Grace Plaza of Great Neck v. Elbaum, 588 N. Y. S.2d 853, 858-59 (App. Div. 1992)
221. But see Bouvia v. Superior Court, 225 Cal. Rptr. 297, 298-99 (App. Dep't Super. Ct. 1986) (requiring medical staff to remove feeding tube in accordance with patient's wishes).
222. Nancy Belden et al., Reproductive Health and Access to Services: A National Survey of Women 15(2000), available at http://www.catholicsforchoice. org/topics/healthcare/documents/ 2000religionreproductivehealthandaccesstoservices.pdf.
223. Pamela C. Smith & Dana A. Forgione, The Development of Certificate of Need Legislation, 36 J. Health Care Fin. 35, 37 (2009);
224. see also Laura Ungar & Patrick Howington, University Hospital Merger Stirs End-of-Life Care Fears, Courier-Journal, Jul. 23, 2011, http://www.courier-journal.com/article/20110723/BUSINESS/307240044/ University-Hospital-merger-stirs-end-life-care-fears (reporting that Catholic healthcare takeover of three hospitals, including a public hospital, would mean that indigent patients who can only receive care in the public hospital would have no access to unrestricted care).
225. See, e.g., Gray v. Romeo, 697 F. Supp. 580, 590-91 (D. R. I. 1988) (noting that nursing home did not notify patient's family of its policy of refusal to remove feeding tubes until they requested removal);
226. In re Jobes, 529 A.2d 434, 450 (N. J. 1987) (same). Patients and their families often do not realize that withdrawal of treatment is an option, even when they are simply awaiting death.
227. See, e.g., Judith Graham, Directive Says Food and Water Must Be Given to Patients in Persistent Vegetative State, Chi. Trib., Feb. 9, 2010, http://articles.chicagotribune.com/2010-02-09/news/1002080254-1-vegetative- statebishops-church-teachings (reporting reactions of several devout Catholics).
228. Angel M. Foster et al., Ibis Reproductive Health, Assessing Hospital Policies & Practices Regarding Ectopic Pregnancy & Miscarriage Management 19(2010), available at http://www.ibisreproductivehealth.org/news/ documents/Summaryofqualitativestudy.pdf (reporting doctors' failure to link unavailability of the preferred treatment for ectopic pregnancies to religious policies).
229. Alain C. Enthoven & Sara J. Singer, Unrealistic Expectations Born of Defective Institutions, 24 J. Health Pol. Pol'y & L. 931, 934 (1999).
230. Cal. Bus. & Prof. Code § 733 (b) (3) (West 2010).
231. See, e.g., Thomas v. Abdul-Malak, No. 02-CV-1374 (W. D. Pa. July 29, 2004)
232. American Academy of Family Physicians, More Residency Slots Needed to Curb Worsening Physician Shortages 1(2010), available at http://www.aafp.org/ online/en/home/publications/news/news-now/professional-issues/ 201020aamcwrkfrcupdt.html (predicting shortage of 45, 000 primary care physicians within a decade).
233. Alan Portner, Half of U. S. Docs Reach Age 65 by 2020, D. C. Pub. Pol'y Examiner, Mar. 8, 2010, at 2, available at http://www.examiner.com/public- policy-in-washington-dc/half-of-u-sdocs-reach-age-65-by-2020-less-doctors-more- patients-projected.
234. Roberts v. U. S. Jaycees, 468 U. S. 609, 620 (1984) ("[F]actors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent."). That is not to say that some healthcare facilities have constitutionally protected interests in freedom of expressive association. Indeed, although the Supreme Court's jurisprudence in this area is murky, the Court has distinguished commercial activity, like provision of healthcare, from expressive association.
235. 29 U. S. C. § 630 (b) (2009)
236. 42 U. S. C. § 2000e (b) (2000) (fifteen employees);
237. see also Jarod S. Gonzalez, State Antidiscrimination Statutes and Implied Preemption of Common Law Torts: Valuing the Common Law, 59 S. C. L. Rev. 115, 119 n. 18 (2007)
238. See Gottling v. P. R. Inc., 61 P.3d 989, 995 (Utah 2002)
239. Howard M. Wasserman, Jurisdiction and Merits, 83 Wash. L. Rev. 643, 690 (2005)
240. Valley Hosp. Ass'n. v. Mat-Su Coal. for Choice, 948 P.2d 963, 965 (Alaska 1997)
241. See, e.g., Cal. Health & Safety Code § 123420 (c) (West 2006).
242. See, e.g., Alaska Stat. § 13. 52.060 (e) (2009).
243. Anna Maria Cugliari & Tracy E. Miller, Moral and Religious Objections by Hospitals to Withholding and Withdrawing Life-Sustaining Treatment, 19 J. Community Health 87 (1994) (finding that in 1994, only ten percent of hospitals that objected on grounds of conscience to withdrawing or withholding life-sustaining treatment stated objection in writing);
244. 366 A.2d 641, 645-47 (N. J. 1976).
245. Valley Hosp. Ass'n, 948 P.2d at 970-72.
246. see also Payton v. Weaver, 182 Cal. Rptr. 225, 230 (Cal. Ct. App. 1982) (stating, "where such a hospital contains a unique, or scarce, medical resource needed to preserve life, it is arguably in the nature of a 'public service enterprise'").
247. Wolfe v. Schroering, 541 F.2d 523, 527 n. 6 (6th Cir. 1976) (holding that application of conscience clause to public hospitals would be unconstitutional).
248. Roe v. Ariz. Bd. of Regents, 549 P.2d 150, 158 (Ariz. 1976) (Gordon, J., dissenting) (arguing that public hospitals should not be covered by conscience clause).
249. This solution would likely face free exercise challenges. However, following Employment Division v. Smith, 494 U. S. 872 (1990)
250. See, e.g., Catholic Charities of Sacramento v. Superior Court, 32 Cal. 4th 527 (Cal. 2004)
251. Catholic Charities of the Diocese of Albany v. Serio, 808 N. Y. S.2d 447 (N. Y. App. Div. 2006) (holding mandatory contraceptive coverage passed New York Constitution's intermediate balancing standard).
252. St. Agnes Hospital of Baltimore v. Riddick, 748 F. Supp. 319 (D. Md. 1990), is instructive. There, prior to Smith, the district court found that Catholic hospitals were not entitled to an exemption from requirements that residents receive experience in contraception, abortions, and sterilizations imposed by the accreditation body for obstetrics-gynecology programs. The Court considered "ensuring that these procedures are performed by competently trained physicians" to be "an overwhelmingly compelling interest" and found that there was no less restrictive method to implement nationwide physician training.
253. Valley Hosp. Ass'n. v. Mat-Su Coal. for Choice, 948 P.2d 963, 965 (Alaska 1997);
254. Bridgeton Hosp. Ass'n, 366 A.2d at 645-47.
255. Ham v. Holy Rosary Hosp., 529 P.2d 361, 365 (Mont. 1974)
256. J. Stuart Showalter & John L. Miles, Restructuring Health Care Organizations While Retaining Recognition as a Catholic Institution, 32 St. Louis U. L. J. 1111, 1116-21 (1988) (documenting changes in Catholic healthcare).
257. Am. Acad. of Pediatrics Comm. on Bioethics, Physician Refusal to Provide Information or Treatment on the Basis of Claims of Conscience, 124 Pediatrics 1689, 1691 (2009);
258. Dan W. Brock, Conscientious Refusal by Physicians and Pharmacists: Who Is Obligated to Do What, and Why?, 29 Theories Med. & Bioethics 187, 194 (2008);
259. Thomas May & Mark P. Aulisio, Personal Morality and Professional Obligations: Rights of Conscience and Informed Consent, 52 Persp. Biology & Med., 30, 35 (2009).
260. Ryan E. Lawrence & Farr A. Curlin, Physicians' Beliefs About Conscience in Medicine: A National Survey, 84 Acad. Med. 1276, 1278 (2009).
261. See, e.g., Laura A. Davidson et al., Religion and Conscientious Objection: A Survey of Pharmacists' Willingness to Dispense Medications, 71 Soc. Sci. & Med. 161 (2010) (discussing spread of invocations of conscience by pharmacists).
262. Adamson v. Superior Ambulance Serv., No. 04C 3247 (N. D. Ill. May 7, 2004);
263. see also Steven Kreytak, Bus Driver Says Religious Views Led to Firing: Man Refused to Take Clients to Planned Parenthood Clinic, Austin-Am. Statesman, Jul. 16, 2010, http://www.statesman.com/news/local/bus-driver-says-religious- views-led-to-firing-807732.html.
264. Chris Serres & Matt McKinney, Target Is Transferring Cashiers Who Avoid Pork, Star Trib. (Minneapolis, MN), Mar. 17, 2007, at 1A.
265. Teresa Stanton Collett, Professional Versus Moral Duty: Accepting Appointments in Unjust Civil Cases, 32 Wake Forest L. Rev. 635, 640-48 (1997).
266. Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common, 5 Nw. J. L. & Soc. Pol'y 206, 207 (2010);
267. Robin Fretwell Wilson, Same-Sex Marriage and Religious Liberty: Life After Prop 8, 14 Nexus 101, 110 (2009).
268. See, e.g., Wash. Rev. Code § 48. 43.065 (2) (2011) (exempting HMOs with moral or religious policies);
269. Conn. S. Tr., S. 899, Apr. 22, 2009 (statement of Sen. McLachlan) (arguing that healthcare conscience clauses should provide a model for same-sex marriage legislation);
270. Joanna K. Sax, Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation, 63 Me. L. Rev. 89 (2010) (describing spread of state conscience legislation to pharmacists). I plan to examine the extension of these arguments to same-sex marriage in a future article.