Law, Religion, and Health Care

8 UC Irvine Law Review (2018)

26 Pages Posted: 28 Jan 2018  

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: January 18, 2018

Abstract

While questions of law, religion, and health care have engaged scholars, policymakers, and the general public for decades, society continues to struggle over the conflict between patient access to care and conscience-based objections to the provision of care. To what extent can physicians, religiously-affiliated hospitals, or employers deny patients access to abortion, contraception, or end-of-life care that will hasten death? What about denying fertility services to a same-sex couple? Or when can parents refuse medical care for their children because of religious belief?

In this paper, I aim to articulate an overarching framework that can address the balance between access to care and conscience-based objections to care in the full range of situations in which the conflict between access and religious conscience arises. In considering the different ways in which the conflict arises, I identify a key principle:

For issues in which conscience is important, religious objections to providing care should be relevant only to the extent that there are legitimate non-religious bases for refusing to provide care. Thus, for example, physicians should be able to refrain from performing abortions or from providing aid-in-dying on religious grounds because one can view abortion or aid-in-dying as immoral on non-religious grounds.

On the other hand, if there are insufficient non-religious reasons for objecting to the care, then religious objections are insufficient as well. For example, since there is no legitimate secular basis for denying fertility services to same-sex couples, religious objections to providing fertility services should not be recognized.

Are there times when one can invoke religious beliefs even when there are no legitimate non-religious bases for the exercise of conscience? If religious freedom is measured in secular terms, then we could easily undermine the whole idea of religious freedom. While there can be circumstances outside of the delivery of health care for recognizing religious beliefs that do not have a secular counterpart, it is difficult to identify a situation in which a person’s religious belief alone could justify the denial of beneficial care. We should not allow religious doctrine to trump a person’s interests in health. In other words, even when someone has a religious freedom interest, the state’s interest in protecting the health of its citizens outweighs the religious interest.

Keywords: abortion, conscience, heath care

JEL Classification: I18, K19

Suggested Citation

Orentlicher, David, Law, Religion, and Health Care (January 18, 2018). 8 UC Irvine Law Review (2018). Available at SSRN: https://ssrn.com/abstract=3104975

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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