The Journal of Contemporary Legal Issues


Dov Fox


We’re used to hearing about conscientious refusal: when physicians or pharmacists deny services they deem sinful or wrong, in violation of hospital policies or malpractice laws. Less familiar is conscientious provision: when clinicians supply care that their employer or state restricts. America’s conscience regime often protects refusers categorically: they get conscience without conditions or consequences. But doctors with heartfelt reasons to supply care their institution or government forbids? For them, conscience is no defense.

This radical asymmetry is indefensible and unjust. Both refusers and providers resist workplace rules and legislative directives at odds with their sincere moral convictions. Both sometimes appeal to religion, and conscience clauses protect secular claims just the same anyway. Nor is the conscientious delivery of routine medication and many other treatments that much more expensive for third parties to accommodate, compared with the cost that exempting such care’s conscientious denial incurs to businesses and colleagues left to fill in the gaps, and especially to patients, who might not be able to access treatment elsewhere in the face of widespread refusals.

Conscience protections shouldn’t be absolute for refusers and absent for providers. There may be practical or expressive reasons to treat certain service denials differently than certain expressions of conscience to deliver care. But the same basic commitments should govern the measure of space that a principled regime affords to each. Legal protections for medical conscience ought to attend to the individual claimant’s moral integrity, to larger interests in social pluralism, and to the impact of accommodation on others—not simply whether a claimant would refuse care or provide it.





Start Page


Faculty Editor

Dov Fox

Included in

Law Commons