In this opinion by Marci Hamilton at findlaw.com, and the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Hamilton shows how the use of conscience is an insidious way to integrate religion into government law making. Without saying so, George W. Bush has taken down the wall of separation between church and state:
Most recently, the executive has expanded so-called "conscience rights," which are more accurately named "conscience privileges." In so doing, the Administration trespassed three constitutional boundaries at once: the one between the federal branches of government, another between the federal government and the states, and the third between church and state.
The Department of Health and Human Services expanded the ability of health care
providers to refuse to provide healthcare or information in circumstances involving medical care that is at odds with the provider's religious beliefs. Congress did not pass such a law, and so the Bush Administration took it upon itself to set social policy in this delicate arena. It also has usurped the states' power over standardsetting for professionals and the definition of good medical care.
Finally, the regulation crosses the boundary separating church and state. The executive is empowering the provider's religion to dictate the availability of medical treatment. Health is being determined by the religious status of the provider, rather than the neutral health needs of the patient. Doctors and pharmacists can now legally impose their religious worldviews on treatment plans, even if it means giving the patient less than what the medical universe has to contribute to their health.
This is a particularly insidious religious preference, because it ignores and suppresses the reality that there are two sets of religious beliefs in the treatment room, not just one. The regulation creates a preference for the religious beliefs of the healthcare provider over the beliefs of the patient. Yet, the medical treatment of the patient should be driven by the needs and religious beliefs of the patient, not
those of the provider.
For those medical providers who do not wish to put the patient first in circumstances involving abortion, contraception, or related issues, there are many specialties they can choose that do not involve questions related to conscience clauses. But for them, religion means never having to make a painful choice. The pain of the patient is beside the point in their universe.
Sadly, this is just another example of the Clinton-Bush era's aggressive push by religious entities to obtain "rights" to act without consideration of who is harmed in the process.