Special Rights for the Godly?

Special Rights for the Godly?


Let’s say I’m a Jehovah’s Witness, and I get a job in an understaffed emergency room where, following the dictates of my conscience, I refuse to assist with blood transfusions and try my best to persuade my fellow workers to do the same. How long do you think I’d last on the job? And after my inevitable firing, how seriously do you think a jury would take my claim that my rights had been violated? Five minutes and not very, right? A similar fate would surely await the surgeon who converts to Christian Science and decides to pray over his patients instead of operating on them, the Muslim loan officer who refuses to charge interest, the Southern Baptist psychotherapist who tells his Jewish patients they’re bound for hell. The law rightly requires employers to respect employees’ sincerely held religious beliefs, but not if those beliefs really do prevent an employee from performing the job for which she’s been hired.

Change the subject to reproductive rights, though, and the picture gets decidedly strange. In 1999 Michelle Diaz, a born-again Christian nurse who had recently been hired by the Riverside Neighborhood Health Center, a public clinic in Southern California, decided that emergency contraception, the so-called morning after pill that acts to prevent pregnancy if taken within seventy-two hours of unprotected intercourse, was actually a method of abortion. She refused to dispense it or give referrals to other providers; the clinic offered her a position that did not involve reproductive healthcare, but when she told temporary nurses at the clinic that they too would be performing abortions by dispensing EC, Diaz, who was still on probation as a new hire, lost her job. She sued with the help of the American Center for Law and Justice (ACLJ), the religious-right law firm headed by Jay Sekulow. At the end of May a jury agreed that her rights had been violated and awarded her $47,000.

Excuse me? A nurse at a public health clinic has the right to refuse to provide patients with legally mandated services, give out misleading health information in order to proselytize her co-workers to refuse as well, and keep her job? The low-income women who come to Riverside desperately in need of EC and abortion referrals are flat out of luck if they happen to turn up when the anti-choicers are on shift? Riverside is the largest public health clinic in the county, serving 150-200 patients a day, but it operates with a staff of four nurses–should those four people decide what services the clinic can offer? What about the patient’s right to receive standard medical care? Or the clinic’s responsibility to deliver the services for which they receive government funds?

Some states, California among them, have “conscience laws,” permitting anti-choice healthworkers to refuse to be involved in abortions. EC, however, is just a high dose of regular birth control pills that prevents ovulation and implantation. It is not abortion, because until a fertilized egg implants in the womb, the woman is not pregnant. A long list of medical authorities–the American Medical Association, the American Medical Women’s Association, the American College of Obstetricians and Gynecologists and Harvard Medical School–agree that EC is not an abortifacient, and a 1989 California court decision itself distinguishes abortion from EC. There are lots of mysteries about the Diaz case, ranging from why Diaz took a job she knew involved practices she found immoral in the first place, to how the jury could possibly have come up with a decision so contrary to law and public policy. Did Diaz take the job with the express intention of disrupting services? Was the jury anti-choice? Interestingly, the jury pool was partly drawn from San Bernardino County, which last year unsuccessfully tried to bar its public health clinics from dispensing EC.

Whatever the jury’s thinking, the Diaz case represents the latest of numerous attempts by the anti-choice movement to equate EC with abortion and move it out of normal medical practice. Pharmacists for Life International, a worldwide organization that claims to have some 1,500 members, calls it “chemical abortion” and urges pharmacists to refuse to dispense it. The ACLJ is currently litigating on behalf of one who did. Wal-Mart refuses to stock it at all. Anti-choicers in Britain made an unsuccessful attempt to prevent EC from being dispensed over the counter by placing it under an archaic law that prohibits “procuring a miscarriage.” Some anti-choicers have long argued that not just EC but conventional birth-control methods–the pill, Norplant, Depo-Provera and the IUD–are “abortifacients”: In northern Kentucky anti-choice extremists are campaigning to force one local health board to reject Title X family-planning funds; according to the Lexington Herald-Leader, the board’s vote, scheduled for June 19, is too close to call.

Although secular employers are expected to make reasonable accommodations to religious employees–or even, if the Diaz verdict is upheld, unreasonable ones–religious employers are not required to return the favor. On the contrary, the Supreme Court, in The Church of Jesus Christ of Latter Day Saints v. Amos, permits them to use religious tests to hire and fire personnel as far from the sacred mission as janitorial workers; if a Methodist church wants to refuse to hire a Muslim security guard, it has the blessing of the Constitution to do so. As often noted in this column, religious organizations can and do fire employees who violate religious precepts on and even off the job. A pro-choice nurse could not get a job at a Catholic hospital and declare that her conscience required her to go against policy and hand out EC to rape victims, or even tell them where to obtain it–even though medical ethics oblige those who refuse to provide standard services for moral reasons to give referrals, and even though Catholic hospitals typically get about half of their revenue from the government.

According to the ACLJ, however, secular institutions should be sitting ducks for any fanatic who can get hired even provisionally. The Riverside clinic has asked the judge to set aside the Diaz verdict. If that bid is unsuccessful, it will appeal. I’ll let you know what happens.

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