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Thursday, May 31, 2018

Law, Religion, and Health Care

In a number of health care settings, religious values come into conflict with the desires of patients or the medical judgment of physicians and other providers of health care. A doctor or hospital might invoke considerations of conscience to deny patients access to abortion. Or parents might invoke religious beliefs to refuse medical care for their children.

In a forthcoming article (available here), I argue that while the free exercise of religion is a fundamental right, the interest in protecting individual conscience can be secured without consideration of religious  belief when it comes to deciding about access to health care.

For treatment decisions in which a provider’s religious belief deserves respect, there always will be a legitimate nonreligious basis for refusing to provide care. For example, just as physicians can view abortion as immoral on religious grounds so can they view abortion as immoral on nonreligious grounds. Thus, for example, the Church Amendment protects individuals or facilities for whom abortion is “contrary to . . . religious beliefs or moral convictions.” The moral conviction language is broad enough to encompass both the sectarian and the secular.

On the other hand, if we cannot find sufficient nonreligious reasons for objecting to the care, then religious objections are insufficient as well. For example, if principles of child abuse and neglect generally would prohibit parents from rejecting a particular medical treatment for their children, then a parent’s religious beliefs would not justify an exemption from the obligation to agree to the treatment. Parental religious beliefs should not permit a parent to refuse a polio vaccine or an appendectomy for a child because there is no legitimate nonreligious reason for rejecting ordinary medical treatments that can prevent death or other serious harm to the child’s health.

Are there any exceptions to the connection between religious reasons and secular reasons? Are there times when one should be able to invoke religious beliefs even when there are no legitimate nonreligious bases for the exercise of conscience? If religious freedom is measured in secular terms, then we could easily undermine the whole idea of religious freedom.

While there are circumstances outside of the delivery of health care for recognizing religious beliefs that do not have a secular counterpart, it is difficult to identify a situation in which a person’s religious belief alone could justify the denial of beneficial care. We should not allow religious doctrine to trump a patient’s interests in health. In other words, even when someone has a valid free exercise interest, the state’s interest in protecting the health of its citizens outweighs the religious interest—the state has a compelling interest that overcomes the fundamental right.

There’s also an important advantage to looking to secular morality rather than religious belief. It can be difficult for courts to assess the sincerity or legitimacy of a religious belief, as with arguments about complicity. Analyzing matters such as complicity in secular terms allows a court to give due regard to religious beliefs without having to make religious judgments.

Posted by David Orentlicher on May 31, 2018 at 12:49 PM in Constitutional thoughts, First Amendment, Religion | Permalink

Comments

Speaking of which , I have just learned , that Federal appeals court has rejected atheist's argument to remove 'in God we trust' from US currency , here the ruling :

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0096p-06.pdf

Posted by: El roam | May 31, 2018 7:06:59 PM

Interesting post , the respectable author of the post , claims that :

" ……. just as physicians can view abortion as immoral on religious grounds so can they view abortion as immoral on nonreligious grounds."

But a very fundamental distinction is needed here :

For , when it is on religious grounds , the potential for having dynamic for shifting or changing the position of one patient or guardians , is slim . You wouldn't be able to persuade them typically. Typically , only a priest would be able to do it . Why ?? This is the nature of every religion almost :
To be fixed . To set up rules , which can't vary every Monday and maniac day. You can't understand god . You can follow and obey his commands. But , you can't really understand always what is meant for , and even if you can , obeying , takes over . Otherwise , there wouldn't be need or room for religions at first place. If moral or values can change randomly , It would project on the very existence of human being , rendering his life and his whole perception and existence , meaningless and random , generating so morbid Alienation .

So , it would definitely be much more convenient , to persuade a secular person , over religious one. Even when there is apparent similarity in purpose or value or merits.

Thanks

Posted by: El roam | May 31, 2018 5:19:03 PM

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