Thursday, July 25, 2019

T. Patrick Hill: Wrong on Religious Freedom and ‘Equal Protection Under Law’


The intersection of intellectual freedom with government controls is evident in the long-running controversy surrounding the government’s reproductive, or birth control, mandates. 


In a secular and pluralistic society, such as the United States today, religious exemptions as public policy are a contradiction in terms. Under the U.S. Constitution, individuals enjoy the right to practice religion. At the same time, the Constitution prohibits any kind of state-sponsored religion. Constitutionally speaking, the practice of religion is a private not a public matter, even though it takes place in public.

Why then did President Trump recently issue rules affording healthcare providers, insurers and employers the protection of their religious beliefs against providing such services as abortion and sterilization?

Exemptions to laws on religious grounds, but not other grounds, are definitely unfair. Providers should be free to decide who they do or do not treat, consistent with contractual terms, on any ethical grounds as a matter of individual rights. However, on religious freedom, Hill is dead wrong. Hill does not explain how government protecting the freedom to non-rights violating religious practice, in this case refusing to provide abortion or sterilization services consistent with the providers’ private religious convictions, amounts to a government establishment or sponsorship of religion.

Yet that is what Hill is arguing. And he frames his view in constitutional terms. I left these comments, expanded and edited for clarity *:

Religious freedom—freedom of conscience—means the right of each person to live by his own conscientious beliefs, so long as he respects and does not violate the same rights of others. This means that a person has the moral right to consume contraceptives, but no right to force any pharmacist to provide the contraceptives. Likewise, the pharmacist has a moral right to refuse to provide contraceptives, but no right to forbid anyone from going elsewhere to get it, or forbid other pharmacists from filling the prescription. Either way, no one’s rights are violated.

The same goes for abortion or any other healthcare product. There is no right to healthcare—to legally force someone to provide it—only the right to pursue healthcare from willing providers on mutually agreed terms. This principle goes beyond the reproductive mandates, to all healthcare mandates. Forcing anyone to provide, or buy, services against her will violates the government’s purpose to protect individual rights. 

Hill goes on:

How can we secure the constitutional principle of equal protection under law when the justification for the law is a set of beliefs that cannot be shared beyond the believer precisely because they are religious?

In light of Hill’s reference to the Equal Protection Clause, it is stunning to read the following:

Obviously, the believer is at liberty to undergo or not medical treatment on the basis of his or her beliefs since the decision is self-regarding. But of course that is not possible in the case of a healthcare provider, whose treatment decisions are unavoidably other-regarding, involving patients.

This is a moral perversion. Hill is essentially saying that health providers are not entitled to live “on the basis of his or her beliefs” because they provide the services. That is fundamentally unethical, and unequal treatment under law. Providers are not slaves. Providers have the same “self-regarding” right to conscience as everyone else--and rights by definition govern relationships with others**. Protecting pharmacists’ right to refuse is not “law [that] prohibits the fulfillment of the prescription.” No one is proposing to prohibit any pharmacist from proscribing any legal substance. By protecting religious rights (or any right), government is doing its job of protecting rights equally, both of the consumer and of the provider. Just as no one should be forced to undergo medical treatment against his or her will, so no one should be forced to provide medical treatment against his or her will.

Hill jumps through myriad hoops to twist logic onto his side. I agree that there should be no religious exemptions to laws. But neither should anyone be exempt from the protection of their individual rights. Each of us has a right to our own conscientious beliefs, but no “right” to force our beliefs on others. Yet forcing beliefs on others is exactly what the reproductive mandates for contraception, abortion, sterilization, etc. do. If it is wrong for government to establish religious beliefs, it is equally wrong for government to establish any moral beliefs. Religious freedom = freedom of conscience, because religion has no monopoly on moral beliefs. Freedom of conscience extends to both believers—the consumer and the provider. The First Amendment, interpreted fundamentally and in its full context, protects intellectual freedom, which is the right of each person to live by his own conscientious beliefs, so long as he respects and does not violate the same rights of others. 

Related Reading:







How the Catholic Church Paved the Way for the Birth Control Mandate

Related Viewing:

Ayn Rand on Free Speech and Church-State Separation --Onkar Ghate explains the broader meaning of the First Amendment.

*[Once again, the Star-Ledger has blocked my comments from public view; that is, it appears when I am signed in but disappears when I sign out. It does that often, for reasons no one will explain to me.


**[Absent a social setting or relationships with others, rights are absurd. The purpose of individual rights is to prevent others from violating your rights. If you are alone on a deserted island, who can violate your rights?]

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