Editor's Note: This column was authored by Kathleen Hunker
Just before Christmas, a New Jersey hospital finally agreed that it will no longer force its nurses to assist with any abortion related services. The settlement concluded an emotional battle between the hospital’s administration and 12 pro-life nurses, who objected to the procedures on religious and moral grounds.
The New Jersey controversy prompted a series of questions regarding the rights of individuals who oppose abortion, and whether they retain the right to abstain from facilitating what they view as the termination of a human life in the course of their professional and/or business activities. How far does the individual right of conscience extend in light of some states’ expressed interest in offering cost-effective abortion services? It is a valid and disputed question.
Of course, this unresolved tension between religious liberty and changing social policy exists beyond the contours of a university hospital. These questions surface routinely over a wide range of issues and in a wide range of professions. In the 1990s, the government inquired whether practicing Christians could decline renting to cohabitating heterosexual couples. Hospitality companies question whether they can opt out of hosting same-sex “marriage” celebrations, and then there is the vigorously contested matter of pharmacies refusing to dispense contraception.
A common reflex is to disregard the concerns of religious professionals because we view them as self-inflicted. After all, as the sentiment goes, if you have an objection to dispensing certain medications, do not become a pharmacist.
I would be more satisfied with this response if it were limited to a single profession, but that is not the case. A single religious belief can raise questions of conscience in an anthology of unrelated vocations, and an entire catechism of religious beliefs can exclude the faithful from the market in its entirety. As a consequence, if society gives conscience rights no regard whatsoever, religious individuals could find themselves effectively excluded from pursuing a livelihood.
To demonstrate how this works, I compiled a non-exhaustive list of occupations “closed off” to practicing Christians under the philosophy that those who believe in traditional morality should simply avoid particular professions. Each example listed comes from a recent legal action that made this very claim.
According to the philosophy I detailed, practicing Christians cannot operate a catering hall, practice psychology, run a hotel, work as an independent photographer, launch a video-duplication company, rent out apartments (even if it is in their own home), teach in public schools, work as a guidance counselor, run for a clerk’s office, manage a restaurant, open up a florist, oversee and operate an adoption agency, become a social worker, become a pharmacist, start a fertility clinic, serve as a doctor or nurse, or even practice law.
Without conscience protections, Christians find themselves barred from each listed profession— all because of their commitment to a single Christian belief. And let us be frank: religions consist of more than one individual tenet. If you were to consider the breadth of the entire Christian faith, which includes other potentially controversial positions, you would expand that list to the point where traditional Christians could not enter the marketplace without being forced to choose between a secure livelihood and the state of their soul. The same is true of all religious faiths.
Excluding Christians from service professions not only impacts the professionals—it takes choices away from patients, who often want to choose a counselor or doctor who shares their core values. If patient access to services is an important societal goal, that counsels in favor of protecting conscientious professionals so that patients can choose them, too.
Imposing one set of values on all professionals vastly reduces the choices available in a diverse marketplace. Society, therefore, needs conscience protections in order to ensure that religious individuals can participate in the market as both entrepreneurs and consumers.
Disregarding the hardships of religious professionals as avoidable and self-inflicted leads to the near exclusion of religious individuals from the public market. Such a scenario seems irreconcilable with our nation’s commitment to diversity and liberty.
We live a society of competing and contradictory beliefs. If we are to stay true to our national promise of equal liberty to all, then we cannot exclude entire populations from the marketplace simply because we disagree with their values or fail to share their hardship. Conscience protections provide some give in the joints of society; they enable people of conflicting beliefs to live with one another.
Religious professionals have the right to pursue a livelihood, and that right is seriously compromised by a society that instinctively dismisses their concerns. A diverse society requires comprise in order to be successful. As such, the conscience rights of individual should be defended whenever possible.
Kathleen Hunker has an LL.M. in Public Law and Human Rights from the University College London. She is a third-year student at the Columbia University School of Law and an Alliance Defense Fund Blackstone Fellow.