Note and Comment
An imminent conflict is developing between religious healthcare institutions opposed to physician-assisted death (PAD) and their healthcare employees who wish to offer PAD to their patients. When these interests clash, institutional conscience claims must prevail over doctors’ desires and patients’ demands. This article catalogues the incomplete patchwork of conscience protections guaranteed to American healthcare workers and institutions, as well as the swiftly accelerating wave of PAD legalization sweeping the states. The article documents the tactical vocabulary—deployed with nearly identical language in every state PAD statute—that conspicuously anticipates con-science objections from the massive, and staunchly anti-PAD, Catholic healthcare system. Notably, in each state with legalized PAD, if a healthcare employee wishes to administer PAD to a patient, statutory loop-holes render employing hospitals powerless to object on the basis of institutional conscience. Finally, the article proposes a solution to this free exercise threat. In Hosanna-Tabor and Our Lady of Guadalupe, the Supreme Court recognized that religious institutions have a First Amendment right to hire and fire employees who personify their beliefs, free from government interference. The Court has expressly declined to limit the scope of this right, but it has strongly indicated that the proper approach requires deference to the religious institution itself to define which employees personify its beliefs. Be-cause healthcare workers personify the central Catholic mission of healing the sick, Catholic hospitals must be permitted to employ only healthcare employees willing to honor the Church’s sincere beliefs about certain medical practices, such as PAD, that violate Catholic institutional conscience.
Zachary R. Carstens
The Right to Conscience vs. The Right to Die: Physician-Assisted Suicide, Catholic Hospitals, and the Rising Threat to Institutional Free Exercise in Healthcare,
48 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol48/iss1/13