Panelists Probe Matters of Conscience and Public Policies

How far should the government go in protecting matters of moral and religious conscience?

In a discussion on April 28 at Fordham’s Lincoln Center campus, four experts in law, religion and civil liberties exposed deep schisms that exist around the fundamental liberties raised by same-sex marriage, abortion and other hot-button topics.

The panelists were part of “Matters of Conscience: When Moral Precepts Collide with Public Policy,” a forum presented by Fordham’s Center on Religion and Culture.

“I’ve never met anybody in my life who said, ‘You know, I am opposed to liberty of conscience, and I think it’s a horrible idea,’” said Robert Vischer, Ph.D., associate professor at the University of St. Thomas Law School and author of Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge, 2009). “But there are real differences in what we mean when we say it.”

Douglas Kmiec, the Caruso Family Chair in Constitutional Law at Pepperdine University and a pro-life advocate who has taken flack for supporting President Barack Obama, said government should be sensitive to individual matters of conscience, but back off from legislating institutional claims of conscience.

He lodged some criticism against the Catholic Church for its “all or nothing” attitude toward members who may have individual matters of conscience that are not lock-step with church doctrine. He questioned the church’s push for public policy on such issues.

“You don’t need to stop insurance coverage of contraception for people who have no moral objection to it in order to convey to Catholics the significance of humanae vitae,” Kmiec said.

Freedom of conscience should be limited by policies, said Nadine Strossen, professor of law at New York University, if it beomes necessary to protect other basic rights or the public interest. Strossen, a former president of the American Civil Liberties Union (ACLU) cited one of President George W. Bush’s “midnight regulations,” which he pushed into law just weeks before he left office, as an example of an “unbalanced” conscience clause.

The clause, in effect, protects doctors and nurses who refuse to assist with abortions or dispense contraceptives based on moral and religious grounds. It also authorizes health care providers to deny health care services even in emergencies, Strossen said, and it exempts such providers from having to inform patients that it is withholding services.

“In short,” she said, “the regulation absolutely protects health care providers’ freedom of choice at the cost of absolutely denying patients’ freedom of choice.”

Vischer joined sides with Marc D. Stern, acting co-executive director of the American Jewish Congress, in the view that conscience clauses are, essentially, a clash between visions of personal liberty and visions of equality, and that government should offer only broad protections.

“There are important public values in both sides of the debate about conscience, and that is why I am hesitant to have the government choose one particular set of values and put others to the sideline,” Vischer said. “Where values clash, the default position for society that takes conscience seriously is to resist the temptation to use state power to close down the conversation.”

As an alternative, Vischer suggested that a pharmacy that does not want to administer contraceptives should “live out its convictions in the marketplace,” crafting its own policies of morality and conscience in response to the demand of employees and customers.

“If Tom Cruise wants to open a pharmacy that does not sell anti-depressant medication, it is one thing to let him try and realize that the market is not going to support the pharmacy,” Vischer said. “It is another thing for the state to close him down from even making the attempt.

“That is what is at stake when we talk about liberty of conscience,” he said.