Is a Vermont nurse the new Kim Davis?
Not since the case of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to gay couples, have we had such an opportunity to consider the messy interplay of freedoms of religion and association in public service. These issues are newly raised by a lawsuit in Vermont, where a Catholic nurse at a state hospital, the University of Vermont Medical Center (UVMMC), alleges she was forced — deceived, even — to participate in an elective abortion despite registering her conscientious objection in advance.
The Trump administration's Office for Civil Rights at the Department of Health and Human Services has taken up the nurse's cause, on Wednesday giving UVMMC 30 days to change its policies or face the loss of millions in federal grants and other taxpayer funding. The hospital has pushed back, insisting it does not violate federal conscience protections.
So, once again, battle lines are drawn and competing rights claims levied. How do we adjudicate this? The Atlantic's Emma Green notes that her report on the story was met with "a lot of reactions ... saying, 'Good [for the hospital], that's [the nurse's] job.'" But is it? Is religious liberty so glibly dismissed?
Let's set aside, for the sake of discussion, the ethics of abortion and consider it as but one part of a broader category of medical procedures to which health-care workers might have religious or other moral qualms. This category would also include things like voluntary euthanasia or assisted suicide, which is legal in some states, as well as transition care for transgender individuals, circumcision, or sterilization.
First and foremost, health-care providers like the nurse in Vermont must not be legally forced to perform procedures like these in violation of conscience. This is a matter of religious liberty, yes, but it is equally important for nonreligious objectors. It is indefensible to coerce others into committing what they believe to be a grave evil.
But that assertion alone does not settle the matter, because it raises related questions: What do we mean by "force"? Does the threat of unemployment count? And what are the rights of these providers' employers? Here is where I suggest we consider another First Amendment freedom too often neglected in religious liberty conversations: association.
Freedom of association means that private employers — which UVMMC is not, a detail to which I'll return in a moment — should have a right to refuse to employ people who will not perform part or all of their jobs, even on religious grounds. That risk of termination which freedom of association entails does not amount to force. The prospect of losing employment with a private business because you will not do the work expected of your role is not compulsion of the sort that must be categorically rejected in a free society. Just as freedom of religion protects the employee's right to refuse to do the procedure, so freedom of association protects the employer's right to refuse to retain the employee.
This is all very tidy and, I expect, roughly acceptable to many Americans. But everything is complicated when the state is involved and both negative (freedom from) and positive rights (obligation to) are at stake.
Consider again Kim Davis. Her negative right to religious liberty conflicted with the positive right to gay marriage guaranteed by the Supreme Court's 2015 decision. As The Week's Jim Antle argued at the time, though "government officials should have wide latitude to recuse themselves from things they find morally problematic whenever practical," sometimes conscience will require they recuse themselves from their jobs entirely.
"Opposition to the death penalty is a perfectly legitimate moral position. So is objecting to the use of force. People have the right to act in accordance with those beliefs," Antle continued. "But a death penalty opponent doesn't have the right to a job as an executioner, and a conscientious objector has no right to a career in the military." Davis could not be forced to issue the marriage licenses in question. Neither could she stay in a public position that required their issuance.
The situation in Vermont differs from the Davis scenario in meaningful ways. For one, assisting with elective abortions is not nearly so integral to nursing at a state hospital as providing marriage licenses is to serving as a county clerk. Davis' beliefs had a far more significant and unavoidable impact than the nurse's objection realistically could.
Moreover, the court's decision about gay marriage created a clear obligation for state provision of marriage licenses, but there is no equal obligation of state provision of elective abortions. In fact, federal funding cannot be used for elective abortion, and the 15 states, Vermont included, which use public monies for elective abortion do so for Medicaid recipients, not the population at large. When UVMMC argues it "strike[s] the appropriate and legal balance between supporting our employees' religious, ethical, and cultural beliefs, and making sure our patients are not denied access to safe and legal abortion," it is being disingenuous about the extent to which requiring this Catholic nurse to do this procedure is necessary for abortion access for Vermonters.
The philosophically simple (and practically convoluted) libertarian solution to much of this quandary is to end state involvement in the services over which we have these fights. If the government has no say in marriage, the county clerk's religion becomes irrelevant to gay couples' nuptials. If health care is not provided by the state, our tidy pairing of freedom of religion and association means Catholic nurses will probably work at hospitals that don't provide abortions, and facilities that do probably won't employ many Catholics.
But I have no illusions about that answer being put in to practice any time soon. So instead we are left to weigh competing rights and freedoms, to sort out what counts as coercion, to navigate a federal legal code whose enforcement evolves with each administration.
In complicated cases like these, my instinct is to guard negative rights of conscience for state employees. Yet there is a practical tipping point. Somewhere we cross the line between the spot in which this nurse found herself — where conscientious objection means removing oneself from a single duty others can handle — to a Davis situation — where conscientious objection requires removing oneself from the job altogether. I say this as a Christian whose convictions would preclude me from many public roles, including any occupation of the sword. It is often no easy task, in a pluralist society like ours, to stand on principle while neither coercing nor being coerced.