The Corner

Law & the Courts

Medical Conscience and Masterpiece Cakeshop


I have been looking forward to the Supreme Court’s Masterpiece Cakeshop decision because of its potential impact on the looming “medical conscience” issue. The news is mildly good.

Medical conscience deals with the right of doctors, nurses, pharmacists, and other such professionals to refuse to participate in legal medical interventions or procedures that violate their religious and moral beliefs.

Medical conscience is generally discussed in the context of abortion or contraception. But it could also apply to assisted suicide, infant circumcision, treatment for gender dysphoria, and, perhaps one day, providing embryonic-stem-cell therapies, genetically engineering embryos, or therapeutic human cloning.

With that in mind, while I don’t think the decision comes anywhere near guaranteeing that medical-conscience rights based on religious beliefs will be protected in future court rulings, by analogy, it does begin to build a legal foundation for such a future course.

The First Amendment protects the free exercise of religion. But that guarantee has shriveled in recent decades, often giving way to laws of general application. (This is why the Religious Freedom Restoration Act was enacted.)

The Colorado anti-discrimination law that was the basis for the state punishing the baker for refusing to custom design a wedding cake for a same-sex couple, was one of general application. But several of the civil-rights commissioners in Colorado made a big mistake by openly expressing denigrating and antithetical views toward religious beliefs in the enforcement hearings.

This became the deciding factor in the case. From Justice Kennedy’s decision, writing for the 7-2 majority:

The neutral and respectful consideration to which Phillips was entitled [regarding his religious beliefs] was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection…

The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

This makes for a very narrow precedent that might not apply in other cases in which law enforcers aren’t foolish enough to express such open antagonism.

Still. In many of the articles published in bioethics and medical journals arguing against conscience rights, a similar antipathy is expressed toward religious beliefs of doctors vis-à-vis a patient’s supposed right to receive requested legal interventions. That antipathy is now part of the record of this controversy.

More directly, the decision stated quite specifically that, consistent with the First Amendment, clergy could not be forced to marry gay couples:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.

This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.

I think the role of a doctor in a medical conscience case could certainly be analogized to that of clergy in a marriage. Both participate directly in the objected-to deed. The majority decision assumes it is a self-evident truth that a law forcing clergy to violate their religious beliefs in this way would violate the First Amendment. A good argument could be made that the same reasoning would apply to doctors forced to abort a pregnancy or administer hormones to prevent normal puberty in a child diagnosed with gender dysphoria.

Whether that would protect medical professionals such as nurses or pharmacists is less certain.

A defeat for religious liberty in this case could have been devastating to the prospects for relying on the First Amendment as a shield for protecting medical conscience. This mild victory — let’s call it an infield single — at least helps. It’s better to have a player on first base as the next batter comes to the plate than back in the dugout after striking out.

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