Do Health Care Corporations Have A Conscience?
By John M. Swomley, Professor Emeritus of Social Ethics
St. Paul School of Theology
Since when does a corporation-a pharmacy, an insurance provider, a research group-have a conscience?" This is a question raised in reaction to a bill introduced recently in the Kansas Legislature on behalf of the Kansas Catholic Conference. The answer may have wide-ranging effects, but not for the activities of corporations like Exxon or Boise-Cascade who claim to be acting out of conscience in reducing pollution or lumbering responsibly. The Kansas bill and nearly identical bills elsewhere are putting a new twist on the meaning of conscience, not in the field of the environment, but in the field of health care.
To declare that a corporation or legal entity can claim "rights of conscience" identical to an individual`s claim of conscientious objection to certain types of health care, is to blur a crucial meaning and destroy an important legal distinction.
That is what is at stake in the Kansas bill introduced not on behalf of a minority group like the Mennonites or Quakers claiming conscientious objection to war, but by the politically powerful Catholic Conference in Kansas claiming the right of not only individuals but of corporate groups to refuse to engage in any activity forbidden by the Vatican, even when it is legal and customary for all patients.
The bill`s claim on behalf of conscience is appealing. Webster`s Dictionary defines "conscience" as "the moral judgment that prohibits or opposes the violation of a previously recognized ethical principle." Colliers Encyclopedia defines it as "the human being`s direct or deliberate conviction of right and wrong. In resistance to his strong impulses and desires, conscience is the force that makes him recognize what he ought to do and bids him do it."
Individuals, however, are involved in a family, perhaps a religious group, and certainly a civil society. So conscience is formed, not innate. Instead of an intuition everyone has at birth, it is formed by training and experience, as well as the use of reason. For example, a child whose parents are members of the Society of Friends (Quakers) or some other religious group may be inclined to view war differently from a child reared in a military family.
In early American history, it was assumed by such advocates of obedience to conscience as Roger Williams, John Locke, and James Madison, that each person has freedom of conscience. Locke wrote, "Nobody is obliged . . . to yield obedience unto the admonitions or injunctions of another, further than he himself is persuaded. Everyone in that has the supreme and absolute authority of judging for himself."[i]
In recent history both Congress and the Supreme Court prior to World War II recognized the right of individuals, on the basis of conscience, not to participate in war or training for war. However, the conscription law adopted by Congress prior to World War II refused to grant conscientious objection to a collective group, such as a peace church, or to any and all members of a denomination that opposed war, nor to an individual simply on the basis of a moral statement. Conscience was personal and applied to individuals.
Another approach to conscience is based on adherence to natural law. Pope John Paul II said, "There exists a moral law ascribed in our humanity, which we can come to know by reflecting on our own nature and our actions and which lays certain obligations upon us because we recognize them as universally true and binding."
The origin of this idea is in the Greek philosophy of Stoicism. Everything perceived to be "natural" is good. Questions arise, however, as to what behavior is "natural." The Apostle Paul, who lived in the Greek world, accepted the idea. In First Corinthians 11:14-15, he wrote: "Does not nature itself teach you that if a man wears long hair it is degrading to him, but if a woman has long hair, it is her glory?"
Equally questionable is the basis for Pope John Paul II`s refusal to recognize the equality of women. He wrote, "A woman is by nature fitted for home work . . . not suited for certain occupations." He wrote that paid work outside the home is the abandonment of the role of motherhood, which includes "taking care of her children" and "is wrong from the point of view of the family when it contradicts or hinders these primary goals of the mission of a mother."[ii]
When John Paul II met with a group of U.S. bishops at the Vatican June 27, l998, he told them, "The notion of freedom and personal autonomy is superficially attractive, endorsed by individuals, the media and the courts. . . . Yet it ultimately destroys the personal good of individuals and the common good of society." Then he said., "The nobility of men and women lies not simply in the capacity to choose but to choose wisely," which means "witnessing to the moral laws inscribed in the human heart." Then the Pope said, "As bishops you have to teach that freedom of conscience is never freedom from the truth but always and only freedom in the truth . . . . The Church is preserved in the truth and it is her duty to give utterance to and authoritatively to teach the truth . . . and to declare and confirm by her authority those principles of the moral order which have their origin in human nature itself."
One priest who has left the Roman Catholic church wrote that there is no such thing as natural law. He said, "If there is any law in nature, humans have been interfering with it since they reached consciousness and awareness. . . . The sexual organs are the seat of immense pleasure and also an instrument of showing affection and love. To say that they have only the function of reproduction seems to contradict nature."[iii]
He continues: "Declaring it wrong to interfere with the normal flow of semen trying to reach the ovum would make it wrong to fly, dam rivers, send water to houses, . . take medicine, wear glasses, wear clothes, . . . Is a condom that much different from a dam?"
The rigidity of Catholic natural law was illustrated by a Roman Catholic Question and Answer column: "Question: My wife is sterile but wants her `marital rights.` I have a contagious venereal disease. May I wear a prophylactic sheath? Answer: No. Even though she could not conceive and you would infect her, contraceptive intercourse is an intrinsically evil act."[iv]
It is precisely questions on sexual reproduction and other issues in health care that are raised in the proposal now before the Kansas Legislature and faced in other states. The proposed bill begins with the following: "This Act may be known and cited as the Health Care Providers` Rights of Conscience Act. . . . It is the purpose of this act to protect as a basic civil right the right of all individuals and entities to decline to counsel, advise, pay for, provide, perform,. assist, refer for or participate in providing or performing health care services that violate their religious or moral convictions."
"Health care services" are defined as "any phase of patient medical care treatment or procedure, including the following: therapy, diagnosis or prognosis, research, instruction, prescribing or administering any device, drug or medication, surgery or any other treatment rendered by health care providers or health care institution."
Such "health care services may include abortion, artificial insemination, assisted reproduction, artificial birth control, cloning, human stem cell and fetal experimentation, physician-assisted suicide, and euthanasia." This is the Vatican agenda, but some items such as cloning, stem cell, and fetal experimentation have no relevance to physicians, nurses, pharmacists and most health-care individuals.
The bill is clearly designed to prevent normal medical services to women. For example, emergency contraception to a woman who has been raped would be denied, along with diagnosis and treatment if the rapist had AIDS. A woman would be denied an abortion if she has an ectopic pregnancy, uterine cancer, or if her life were threatened by a dead fetus lodged crosswise in her uterus. It would even prohibit referral to another physician or hospital.
A pharmacist under this proposed law could refuse to fill certain prescriptions.[v] The bill would enable any pharmacy or pharmacist to refuse to fill such prescriptions or even sell condoms if that pharmacy chose not to do so.
That would be comparable to a landlord or real-estate agency refusing to rent to financially qualified people for reasons of their own, such as discrimination against African Americans or Hispanic or Asian Americans.
In other words, this whole idea of legitimizing medical discrimination, under the guise of conscience, is really a weapon against people, chiefly women, who do not share the views of a politically powerful religious organization.
The bill would give rights of conscience to "any entity or employer that pays for any health care service or product, including HMOs. . . and insurance companies." If corporations are said by this law to have a conscience, who decides for the corporation? Can the Chief Executive Officer decide for the shareholders and employees, or should there be a vote? Since this is an anti-contraceptives bill, does it mean that a corporation may require its workers not to use contraception, or have a child by artificial insemination?
How does the state determine what is sincere conscientious objection? The conscription law adopted by the Congress just prior to World War II refused to grant conscientious objection to a man on the basis that he belonged to a particular peace church or denomination, and the law insisted that a draft board make that judgment based on a specific written testimony by the draftee, including his previous record in harmony with his belief in nonviolence.
Will a simple declaration by an individual suffice to prevent him/her from having to do any of the types of health care named in the proposed law? It is well known that those anti-abortionists who bomb clinics and shoot doctors claim that their conscience made them do it.
Can a corporation such as an HMO, insurance company, pharmacy, or hospital merely make a similar claim? Their reasons for doing so could relate more to making a profit, if an HMO refuses to pay for services such as artificial insemination or treatment of a Parkinsons` patient whose doctor wanted treatment with the cells resulting from human stem-cell research. The bottom line may be money, not appropriate health care.
Any state which adopts a so-called "conscience clause" law applying to a corporation ought to require "conscience testing" not only of the CEO, but of every employee or shareholder. How would any legislation prevent coercion by church or hospital or other authority that leads physicians or health care workers to conform to a conscience they didn`t declare?
Would some say, "I opposed abortions but know that the use of effective contraception is the best way to minimize it"? Would a physician with a family history of Parkinson`s disease have to declare a conscience against all stem-cell research and treatment? Why is the phrase "artificial birth control" in this bill, when only one denomination provides another method, one that is least effective in preventing pregnancy, the so-called "natural family planning" method.
A careful analysis of the rationale for "conscience clause" legislation makes it obvious that corporations do not have consciences, but may welcome the legislation to protect themselves from the consequences of denial of otherwise expected and legal medical and health care services. Couldn`t a couple decide to sue their HMO or insurance provider if it refused to pay for emergency contraception for a wife who had been raped or who contracted AIDS as a result?
The proposed legislation may be seen as an effort to accommodate the beliefs or decrees of a religious organization, but it results in the denial of legal and customary health care to the public. The following excerpts from the testimony of Sharon Lockhart of the Kansas chapter of the National Organization of Women present another view:
"Nurses, physicians, other health care workers, pharmacists, and related others receive licenses from the state permitting them to earn money providing services and dealing in substances that are forbidden to others to work at or deal in for profit without licenses. As such, these individuals not only are specially privileged by the public, but also public funds are spent in training and regulating these professions with the appropriate expectation that in return these individuals have been granted their licenses not only for their own well-being and profit, but also to serve the public trust. By refusing to provide legal services or products that others are not permitted to provide, these individuals violate the public trust. In essence, the monopolistic privileges granted to these persons as a group would permit the effective censoring of these legal services or products from the public if sufficient numbers of licensees refused to provide what they alone are licensed to provide. This kind of de facto censoring already can be seen in those areas in which there are no pharmacists who will provide certain drugs or a shortage of medical personnel and facilities to provide certain kinds of services."[vi]
At first glance the proposal by the state Catholic Conference seems to be directed against Jewish, Protestant and secular health care providers because it forbids what it calls discrimination defined as an attempt to prevent state licensing or to prevent affiliation or merger with any health care institution or corporation that "declines to participate in a health care service contrary to the health care institution`s religious or moral convictions." It is of course directed against such opposition when it authorizes lawsuits against proponents of such mergers, but it has additional implications.
It is clearly using the "conscience clause" not only to make it difficult for any woman to receive certain kinds of health care, but also to force Catholic women to accept the Vatican`s program against contraception and abortion. An overwhelming majority of Catholic laity reject the papal position on contraceptives and other issues. Public opinion polls reveal that 83% of Catholics believe that if a Catholic hospital receives government or public funds, it should be required to allow its doctors to provide any legal, medically sound advice they believe is needed. One study indicates 96% of all Catholic women who have engaged in sex relations have used modern contraceptive methods, and 87% of Catholics believe that Catholics should make up their own minds about using birth control. Another poll found that 83% of women believe that insurance plans that cover prescription drugs should be required to cover birth control. Americans should not confuse public opinion with the position of the Vatican or its agents, the U.S. bishops.
Throughout history any individual or a group that sought legal approval of a right of conscience was in fact a small minority of an essentially powerless political group. One can again make a comparison with the small minority of conscientious objectors prior to the Civil War and both world wars. Their appeal was in their moral strength based on a willingness to suffer for their convictions, with no expectation of government or societal support. It was an appeal that impressed people like James Madison, Abraham Lincoln, Eleanor Roosevelt, and many members of Congress. Nevertheless, there were some objectors who went to prison for their convictions.
Those who today seek such a "conscience clause" to censor or omit certain types of medical care are the powerful. Although not a majority, they are the leaders of the most politically powerful religious denomination in the United States. What they seek is not relief from persecution or prison, but power over the medical providers in an effort to legislate their religious agenda at the expense of a majority of American women, as well as women in their own denomination.
Endnotes
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[i] John Locke, "Letter Concerning Tolerance."
[ii] Laborem Exensens, September 14, 1981, 91.
[iii] John Sheehy, The Church`s History of Injustice and Why This Priest Left, Lanham, MD: University of America Press, 1999, 60-61.
[iv] Lawrence Lader, Politics, Power, and The Church, New York: Macmillan, 1987, 77.
[v] This has already occurred in a decision by Walmart not to provide the drug RU486.
[vi] Sharon Lockhart, "Testimony Before Federal and State Committees," Kansas House of Representatives, March 6, 2001.
