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Respect for the Conscientious Objector

(Article published in the Nov 25, 2009 issue of Manila Standard Today) 

Mahar Mangahas, in his column last Saturday (Nov. 21) in another broadsheet, reports that the Bishops-Businessmen Conference (BBC), the Makati Business Club (MBC) and the Management Association of the Philippines (MAP), in a joint forum that they sponsored  three days earlier, pledged to work together to propose a compromise bill on reproductive health. 

 It is only right that our business leaders try to come up with a consensus on a compromise bill on reproductive health.  After all, bills passed into law by democratic societies (presumably ours is one) are mostly, if not all, products of compromises.  But not every aspect of the reproductive health bill, I submit, ought to be subject of compromise.  The one area that ought to be beyond any negotiation is the respect due to the autonomy of the conscientious objector. 

 As it now stands, both in the house version and in the senate version, regard for the conscientious objection is vague and appears no more than lip service.  All that the bills say is that “all conscientious objections of health care service providers based on religious grounds shall be respected”.  I submit this declaration of regard is too restricted; it should be expanded into what is known in other jurisdictions as a “conscience protection law.” The form varies but the substance of a conscience protection law remains the same, namely  he who performs or refrains from acts mandated by the reproductive health law, on grounds of his religious beliefs ought not be punished for non-compliance.










     

In the United States, lawyers talk of the Church Amendments (to the budget), “Church” not because it was advocated by any religious organization, but because it was sponsored by then Senator Frank Church from Idaho in part to response the 1973 US Supreme Court decision in Roe v. Wade and to address concerns that doctors and faith-based hospitals would be forced to perform abortions or sterilizations as a condition of receiving federal funds.

 Essentially, the law prohibits courts and other public officials from requiring individuals or institutions receiving grants under certain federal programs to perform or assist in abortions or sterilizations or to provide facilities or personnel for such operations.

  It also prohibits discrimination in employment, promotion, termination, and extension of staff privileges against physicians or other health care personnel, as well as researchers and laboratory staff, who, based on their religious or moral objections, refuse to perform abortions or sterilizations or to conduct or assist in any research activity on the ground that it would be contrary to his or her religious beliefs or moral convictions.

 Finally, it denies funding to any program that requires any individual to perform or assist in "any part" of a "health service program or research activity" if such participation would be contrary to the said individual's religious beliefs or moral convictions.

 Section 245 of the Public Health Service Act signed into law by Bill Clinton in 1996 goes a bit further than the Church Amendment.  It prohibits discrimination against those who refuse not only to undergo training in, require or provide training in, or perform, abortions, but also against those who refuse to "make arrangements for" any of these activities, such as making abortion referrals.  In contrast, our reproductive health bill makes it obligatory for a conscientious objector to refer the patient to someone who does not have the same scruples.

 Similar to these provisions is the Weldon Amendment, first adopted in 2004 and sponsored by then Representative Dave Weldon of Florida.  Appearing in each subsequent Health and Human Services (HHS) appropriations act, it prohibits discrimination against health care providers; but “health care providers” is defined to include not only physicians and other health care professionals but also hospitals, provider-sponsored organizations, HMOs, and health insurance plans, who do not provide, pay for, provide coverage for (in the case of a health plan), or refer for, abortions.

 Respect for the conscientious objector is not limited to legislation; the courts, too, have given him protection. An example is the case of Moore v. British Columbia (Ministry of Social Services), published in the Canadian Human Rights Reporter, Vol. 17, 29 June, 1992).   That Canadian case dealt with a supervisor who ordered a probationary social worker to write a check to pay for a patient’s abortion.  The social worker refused saying that she did not want to make the payment on account of her personal religious conviction that abortion was a sin and that she did not wish to be an accessory to the commission of a sin. The court decided in her favor. The Ministry of Social Services where she worked was ordered to pay many thousands of dollars in damage and costs for this failure to respect the probationary social worker’s religious beliefs.

 In our country, it is easy to predict how the courts will go.  Section 5 of our Bill of Rights provides that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.”  This guarantee was in our 1935 Constitution and even in the Marcos constitution of 1973.

The key phrase is “free exercise”.  Professor Michael W. McConnell observes that the right to free religious exercise protects religion both “in terms of the conscience of the individual believer and the actions that flow from that conscience.” Similarly, Professor John Witte notes that the right includes the idea that persons are exempt or immune from civil duties and restrictions that they could not, in good conscience, accept or obey.

 I see no reason why our courts will not accept this view.  After all, the  matter of conscience is between a person and his God, and no mere human institution, such as civil government and its courts has standing to intervene.

     

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