James A Sonne
Abstract
Conclusion
“[H]uman law does not prohibit everything that is forbidden by the natural law. Perhaps this aphorism from Saint Thomas Aquinas says it best. In fact, the very reality of conscientious objection concedes as much given that, with the rare exception of a worker being asked to commit a crime, it always involves an objection to an otherwise legal act. Of course, it is likely no coincidence that those who support or oppose laws conferring a right to object to a particular act seem to also oppose or support, respectively, the act in general. Perhaps, as in the case of the abortion based laws, this is simply the result of political compromise. However, such reflexive logic can grow suspect when it extends in a more general manner, whether that be in providing a global right to refuse in the private workplace or, to the contrary, in barring any refusals at all. As noted from the start, this article provides no panacea. Rather, it simply suggests that the trend of open-ended conscience protection that is presently sweeping the nation in the health care arena insufficiently considers the interests of affected employers in at-will authority. The trend is inconsistent with treatments of conscience in law and culture generally, and ignores the fundamental prejudice and public policy bases that otherwise operate in the limited exceptions to the at-will rule that have been developed to this point. Finally, by removing the issue from the deliberative process between employers and their employees, the trend threatens to balkanize both sides in a manner that is good neither for them nor the communities they serve. Conscience is an important and vigorous principle in our common life. For it to remain so on the job, it must act like any other value in an otherwise free and fair system-submit itself to the marketplace of both work and ideas.
Sonne JA. Firing Thoreau: Conscience and At-Will Employment. Pennsylvania Journal of Labor & Employment Law. 2007 Winter;9(2):235-291.