The Right to Conscience and the First Amendment

Abstract

This paper explores the current state of the right to conscience in health care. Most of the paper focuses on the First Amendment law on this topic. It has become increasingly clear that the United States Constitution provides very little protection for religious liberty in this context. Although I support conscience rights under certain circumstances, I largely agree that the source of these rights should not be the First Amendment. Properly interpreted, the First Amendment does not generally provide a basis for conscience rights. In addition, I think the push for a broad right to conscience, as a matter of federal constitutional law, might be counterproductive. Such advocacy may contribute to the privatization of religion and to the undermining of sound ideas of public morality. Nevertheless, there are sound arguments to support legal (if not federal constitutional) protection for conscience rights. The source of these rights should rather be based on sub-constitutional protection developed on a case-by-case basis. These protections — largely statutory protections adopted on a case-by-case basis — do offer hope for significant protection for conscience and advocacy. The moral views reflected in these claims of conscience may in the long run help to largely eliminate the need for conscience rights.