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Professional Right of Conscience

Margaret W Beal, Joyce Cappiello

Journal of Midwifery & Women's Health — Journal of Midwifery & Women’s Health

Abstract
In recent years there have been numerous media reports of professionals attempting to expand the right of conscience and deny health care services requested by consumers. While the media has focused the most attention on pharmacists’ right to refuse access to contraception, this trend is an expansion of the right originally established to protect professionals from being required to perform abortions or to provide direct assistance with abortions. State legislatures have addressed this issue, in some cases by overtly protecting consumers’ rights and in other cases by broadening professional right of conscience. In this article, the literature on provider right of conscience is reviewed, and approaches advised by professional organizations are discussed.

Beal MW, Cappiello J. Professional Right of Conscience. J. Midwifery Womens Health. 2008;53(5):406-412.

Was It Science, Not Religion?

Maimon Schwarzschild

Abstract
Does freedom of conscience, and perhaps freedom of thought generally, have religious roots? Ronald Beiner’s Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke traces the idea of conscience as a factor in Western political thought to ideas that crystallized in the seventeenth century. Beiner examines three leading seventeenth century thinkers – Hobbes, Spinoza, and Locke – to explore whether conscience, or rather the idea of freedom of conscience, was specially a religious imperative for these thinkers: whether their religious commitments or their respect for religious integrity underlay and motivated their ideas about freedom of conscience.

Schwarzschild M. Was It Science, Not Religion? 47 San Diego L. Rev. 1125 (2010).

Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke

Ronald Beiner

Abstract
The organizers of this symposium have posed the question: is the idea of conscience fundamentally rooted in religious commitments? This question inevitably draws us back to the seventeenth century, for that is when the discourse of conscience ultimately originated. And when we consult the most important sources from that epoch, we get, I believe a clear answer to the question, although it may not be the answer that the organizers of the symposium anticipated when they conceived the theme of this gathering.

Beiner R. Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke. 47 San Diego L. Rev. 1107 (2010).

The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation

Michael J. White

Abstract:
The phrase “freedom of conscience” is, of course, not to be found in the United States Constitution: the First Amendment says only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, it seems probable that one, then-contemporary Protestant conception of freedom of conscience was presupposed in these two clauses. Evidence for this conjecture can be found not only in the debate and proposals concerning the Bill of Rights of the United States Constitution but also in the frequently more expansive language of early state constitutions.

White MJ. The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation. 47 San Diego L. Rev. 1075 (2010).

Theses on Secularism

Nomi M. Stolzenberg

Abstract
Notwithstanding the notorious difficulty of defining religion and the consequent effort on the part of jurists and academics to avoid embracing any particular definition, one model of religion has dominated modern discourse: religion as conscience. Because of the dominance of this model, alternative views – which either subordinate the conscience to other supposedly more fundamental features of religion or dispense with the psychological apparatus of conscience altogether – have been largely submerged in modern political and legal discourse. Yet they will not remain suppressed. As a number of the conference papers have attest, alternatives and challenges to the dominant model have been surfacing with increasing regularity and insistence, particularly in the last decade, in part because the logic of the model seems to have exhausted or deconstructed itself, or driven itself into a corner, but also because theoretical rivals to the conception of religion as conscience have always existed, have never disappeared, and have never stopped pressing their claims.

Stolzenberg NM. Theses on Secularism. 47 San Diego L. Rev. 1041 (2010).

From Religious Freedom to Moral Freedom

Michael J. Perry

Abstract
The right to moral freedom is not only analogous to the right to religious freedom. The right to moral freedom, as I explain in this essay, represents a broadening of the right to religious freedom – a broadening that for many of us is compelling.

Perry MJ. From Religious Freedom to Moral Freedom. 47 San Diego L. Rev. 993 (2010).

Comment on Koppelman and Leiter

Christopher T. Wonnell

Abstract
Andrew Koppelman has offered a challenge to Brian Leiter’s view that the proper public attitude toward religion is one of tolerance rather than active respect. Let us explore the nature of that challenge and offer a few observations on the topic.

Wonnell CT. Comment on Koppelman and Leiter. 47 San Diego L. Rev. 987 (2010).

How Shall I Praise Thee? Brian Leiter on Respect for Religion

Andrew Koppelman

Abstract
In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment and religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Special treatment would be appropriate only if there were some “moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” Favorable appraisal would be called for “[o]nly if there were a positive correlation between beliefs that were culpably without epistemic warrant and valuable outcomes. Both arguments depend on a radically impoverished and conception of what religion is and what it does. In this paper, I will explain what Leiter leaves out and offer a hypothesis about why. I will also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.

Koppelman A. How Shall I Praise Thee? Brian Leiter on Respect for Religion. 47 San Diego L. Rev. 961 (2010).

Foundations of Religious Liberty: Toleration or Respect?

Brian Leiter

Abstract
Most Western constitutions, including the American, single out religious beliefs and practices for special kinds of legal solicitude and protection. In this essay, I want to ask a question about the moral foundations of such a legal practice. Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or on the moral attitude of tolerance of religion? My question will not be which of these moral ideals best explains the existing law of religious liberty in the United States, or elsewhere, though legal doctrine is a relevant data point for the inquiry. Instead, I want to ask which of these moral attitudes makes the most sense given what religion is. Of course, our legal practices offer some evidence about “what makes the most sense” because they are, quite obviously, not detached from our moral attitudes. But the law is but one data point among others, and if it were to turn out that aspects of existing legal doctrine in the United States should yield before the best account of the moral foundations of religious liberty that is a conclusion I am happy to endorse.

Leiter B. Foundations of Religious Liberty: Toleration or Respect? 47 San Diego L. Rev. 935 (2010).

Alternative Burdens on Freedom of Conscience

Adam J. Kolber

Abstract
Suppose a pharmacist refuses to dispense pills that induce abortion claiming that dispensing such pills runs counter to principles he holds dear. Indeed, the pharmacist claims that forcing him to dispense the pills would violate his freedom of conscience. He even claims that he would not have become a pharmacist had he foreseen an obligation to dispense such pills at the time he entered his profession. Should the pharmacist’s job be protected if he is making a bona fide claim of conscience? And does it matter whether the pharmacist’s objection to dispensing the pills is rooted in religious or nonreligious reasons?

Kolber AJ. Alternative Burdens on Freedom of Conscience, 47 San Diego L. Rev. 919 (2010).