![](media/image1.png){width="3.00625in" height="1.6090277777777777in"}

**BOARD OF ADVISORS**

Hon. William P. Barr

Former Attorney General

of the United States

Prof. Stephen L. Carter

Yale Law School

His Eminence

Francis Cardinal George, O.M.I.,

Archbishop of Chicago

Hon. Orrin G. Hatch

United States Senator

Prof. Douglas Kmiec

Pepperdine Law School

Prof. Douglas Laycock

University of Michigan Law School

Rev. Richard John Neuhaus

President, Institute of Religion

and Public Life

Eunice Kennedy Shriver

Founder and Honorary Chairman,

Special Olympics International

Sargent Shriver

Chairman of the Board,

Special Olympics International

Dr. Ronald B. Sobel

Senior Rabbi, Congregation Emanu-El

of the City of New York

John M. Templeton, Jr., M.D.

Bryn Mawr, Pennsylvania

1350 Connecticut Avenue, NW

Suite 605

Washington, DC 20036-1735

Phone: 202-955-0095

Fax: 202-955-0090

*www.becketfund.org*

> Office of Public Health and Science
>
> Department of Health and Human Services
>
> Attn: Brenda Destro
>
> Hubert H. Humphrey Building
>
> 200 Independence Ave. SW
>
> Room 728E
>
> Washington, DC 20201
>
> **[Re: Provider Conscience Regulation]{.underline}**
>
> **[73 Fed. Reg. 50274 (Aug. 26, 2008)]{.underline}**
>
> Dear Sir or Madam:
>
> The Becket Fund for Religious Liberty ("The Becket Fund") is pleased
> to submit the following comments in support of the proposed rule
> protecting the conscience rights of health care practitioners and
> institutions. 73 Fed. Reg. 50274 (Aug. 26, 2008).
>
> **[Interest of The Becket Fund for Religious Liberty]{.underline}**
>
> The Becket Fund is a nonprofit, nonparti­san, public interest law firm
> dedicated to pro­tecting the free expression of all religious
> traditions. It has successfully represented clients from a wide
> variety of religious traditions---including Buddhists, Christians,
> Hindus, Jews, Muslims, Native Americans, Sikhs, and Zoroastrians---in
> religious liberty litigation around the world. The Becket Fund takes
> no position on the morality of any particular medical procedure
> (whether abortion, sterilization, contraception, euthanasia, or lethal
> injection), though the morality of such procedures is a profoundly
> important question. Rather, The Becket Fund focuses on a single issue:
> the basic human right of every individual to follow his or her
> conscience. That right has not only been protected in the health care
> context ever since *Roe* v. *Wade*, but also has a long and storied
> place in American history. Because the proposed rule provides crucial
> safeguards for that right, The Becket Fund strongly supports it.

**[Comments of The Becket Fund for Religious Liberty]{.underline}**

1.  **Federal, state, and international laws have long protected medical
    practitioners' right of conscience.**

Judging by opponents' comments on the proposed rule, one would think
that protections for the right of conscience in the health care context
are a recent innovation. Nothing could be further from the truth. State,
federal, and international laws have long protected the right of
conscience in the health care context in a variety of ways.

**a. Federal protection from government pressure.**

Almost before the ink dried on *Roe* v. *Wade*, Congress in 1973 enacted
the first "Church Amendment," providing significant protections for the
right of conscience in the health care context. That amendment forbids
the government from requiring health care professionals or institutions,
as a condition of receiving federal funds, "to perform or assist in the
performance of any sterilization procedure or abortion" if such actions
"would be contrary to \[their\] religious beliefs or moral
convictions."[^1] In other words, the government can't pressure health
care professionals to perform a sterilization or abortion against their
conscience.

**b. Federal protection from private pressure.**

Other Church Amendments, also passed in the 1970s, protect conscientious
objectors not only from government pressure to violate their conscience,
but also from pressure by *private employers*. One amendment, for
example, prohibits the recipients of certain federal funds, such as
hospitals, from penalizing doctors or other health care workers who
conscientiously refuse to perform a sterilization or abortion.[^2]
Another amendment prohibits medical schools and other institutions from
discriminating against any applicant because of the applicant's
conscientious refusal to participate in sterilization or abortion.[^3]

**c. Federal protection outside the abortion context.**

Federal law also extends the right of conscience beyond the issues of
sterilization and abortion. One statute prohibits the recipients of
certain federal research funds from taking adverse employment action
against any health care practitioner who conscientiously refuses to
perform or assist in "*any* lawful health service or research
activity."[^4] This would arguably prohibit a research institution, for
example, from penalizing one of its employees for refusing to engage in
embryonic stem cell research.

**d. Federal protection for refusing abortion training.**

The Public Health Service Act, passed in 1996, protects individuals and
institutions that refuse training in the performance of abortions.[^5]
Section 245(a) prohibits the government from discriminating against any
health care practitioner who refuses to undergo training in abortion;
section 245(b) protects physician training programs from having their
accreditation stripped for refusing to provide training in abortion.[^6]

**e. Federal protection for insurance companies and HMOs.**

The Weldon Amendment, incorporated in every HHS appropriations act since
2005, protects not only health care practitioners and institutions, but
also *HMOs and insurance companies* that object to paying for an
abortion. The law strips federal agencies and state and local
governments of HHS funds if those agencies or governments discriminate
against any entities (including doctors, hospitals, insurance companies,
or HMOs) that refuse to provide, pay for, or refer for an abortion.[^7]

**f. Protection in state law.**

Federal protections for conscience, however, pale in comparison to the
wide variety of protections provided by state law. A full 47 out of 50
states protect health care practitioners' right of conscience to some
degree or another, many providing full exemptions to any health care
practitioner who conscientiously refuses to participate in an
abortion.[^8] Several states expressly protect pharmacists who
conscientiously refuse to provide contraceptives.[^9] Oregon, the only
state with legalized physician-assisted suicide, also protects health
care practitioners who conscientiously refuse to participate in such a
procedure.[^10] And many states protect health care providers who
conscientiously object to performing medical procedures that may be
requested in a patient's living will.[^11]

**g. Protection in foreign and international law.**

Nor are protections for conscientious objectors in the health care
context unique to the United States. Many foreign countries provide
analogous, and sometimes even greater, protections for conscience. In
the United Kingdom, for example, the first statute legalizing abortion
in 1967 provided an exemption for conscientious objectors: "no person
shall be under any duty, . . . to participate in any treatment
authorised by this Act to which he has a conscientious objection."[^12]
Similar protections are provided in the laws of many other western
countries, including Australia,[^13] Austria, Belgium, Cyprus, Denmark,
France, Germany, Hungary, Ireland,[^14] Italy, New Zealand,[^15]
Portugal, and Spain.[^16]

International law also recognizes the right of conscience, though it
does not specifically discuss that right in the health care context.
Article 18 of the International Covenant on Civil and Political
Rights---to which the United States is a party---provides that
"\[e\]veryone shall have the right to freedom of thought, conscience and
religion\[,\] . . . \[including the freedom\] to manifest his religion
or belief in worship, observance, practice and teaching." Although this
provision does not specifically mention conscientious objection, the UN
Human Rights Committee has interpreted it to include such a right:
"\[T\]he Committee believes that such a right \[of conscientious
objection\] can be derived from article 18, inasmuch as the obligation
to use lethal force may seriously conflict with the freedom of
conscience and the right to manifest one's religion or belief."[^17] The
same reasoning would apply in the health care context.[^18]

**h. Recognition in the medical community.**

Finally, the right of conscience has long been recognized in the medical
community. As just one example, the American Medical Association has
repeatedly affirmed that "\[n\]either physician, hospital, nor hospital
personnel shall be required to perform *any act violative of personally
held moral principles*. In these circumstances, good medical practice
requires only that the physician or other professional withdraw from the
case, so long as the withdrawal is consistent with good medical
practice."[^19]

In sum, protections for the right of conscience in the health care
context are not new; they are a well-established feature of federal,
state, and international law.

2.  **Protections for the right of conscience have a long and
    distinguished history in American law.**

> **a. The long history of conscientious objection**

Protections for conscientious objectors are also fully consistent with
the American tradition of democracy and respect for the rule of law.
Conscientious objection was not invented with the Church Amendment; it
has a long and distinguished history.

Conscientious objection predates the Constitution. In the colonial era,
local governments often clashed with the Quaker population. The Quaker's
beliefs often conflicted with the laws of the colonies, which required
compulsory militia service for every able-bodied male and a barrage of
loyalty oaths designed to ensure allegiance to the colonial governments
(and, later, to the fledgling nation). Quakers, with their refusal to
take oaths and their refusal to take up arms, provided some colonies
with their first introduction to religious dissent. Some governments
reacted badly---Quakers often paid for their refusal with jail
time---but the nation gradually came around to the idea that those
willing to risk jail for their principles were likely to make better
citizens, not worse ones.[^20] At the command of General Washington,
Quakers who refused to bear arms in the Revolutionary War were permitted
to return to their families and homes.[^21]

When the Constitution was written a few years later, it enshrined the
notion of accommodations for conscientious objectors. Although the
original constitution was criticized for its lack of a bill of rights
guaranteeing (among other things) religious freedom, it actually
contained two provisions for conscientious objection: one, in the
Presidential oath, allows the President to "swear or affirm" his oath of
office.[^22] The second permits Congress, the judiciary, and other state
and federal officers to make the same substitution.[^23] The "affirm"
language was an accommodation for religious groups such as the Quakers,
who refused on religious grounds to swear oaths.[^24] It was designed to
ensure that they could serve both their country and their consciences.

**b. Conscientious objection and military service**

The tradition of conscientious objection gained significant legal ground
during the Civil War. Although Congress did not provide for
conscientious objection to military service, President Lincoln stepped
in and directed his War Department to make accommodations for those with
religious objections to bearing arms. President Lincoln, after hearing
pleas from Quakers and other peace groups, made special arrangements for
those with conscientious objections to service. Rather than take up
arms, they were permitted to serve in hospitals or other community
service, serving both their consciences and their nation.[^25]

In World War I, Congress enacted the first comprehensive conscientious
objection bill, providing alternative service for those who could not,
in good conscience, bear arms. Congress followed that enactment with a
second in World War II. And during the Vietnam War, the Supreme Court
stretched the conscientious objector exemption to include not only
religiously-based objections, but all "sincere and meaningful" beliefs
that "occup\[y\] a place . . . parallel to that filled by the orthodox
belief in God."[^26] Many states have also written conscientious
objection into their laws regulating state militias.[^27]

If conscientious objectors have taught us anything, it is that religious
objection is not at odds with public service. Hundreds of conscientious
objectors have gone on to render aid, tend to the wounded, and otherwise
provide valuable service to our nation. Two conscientious objectors have
been awarded the Congressional Medal of Honor.[^28] The history of
conscientious objection from military service demonstrates that the
nation has the power to reconcile religious objections with the very
best in public service.

**c. Conscientious objection in other areas**

Nor is conscientious objection limited to military service. During World
War II, the nation struggled with how to respond to citizens (largely
Jehovah's Witnesses) who refused to pledge allegiance to the United
States. School children who refused to salute the flag and recite the
Pledge were expelled from school and their parents faced prosecution for
violation of truancy laws.[^29] In 1943, the Supreme Court held that the
government could not compel citizens to recite the Pledge over their
objections.[^30] This ruling, coming during some of the hardest days of
World War II, underscored the nation's deep respect for the rights of
conscience.

Other religious minorities also enjoy legal protections for their
conscientious objection. The Amish, who believe it is necessary to
withdraw from the world at adolescence, cannot be compelled to send
their children to public school after the 8^th^ grade.[^31] Orthodox
Jews, Seventh-Day Adventists, and others who observe the Sabbath are
permitted to receive unemployment compensation if they are unable to
find religiously suitable work.[^32] Twenty-two states have broad
religious freedom provisions---broader than the First Amendment---which
provide additional protection to those who conscientiously object to a
wide variety of laws. Conscientious objection is not a recent
development, nor an issue confined to the health care context. It
protects majorities and minorities, those on the political right and
those on the political left. It is a proud tradition in the American
legal experience.

3.  **HHS's proposed rule protecting conscientious objectors in the
    health care context provides crucial safeguards for the
    long-recognized right of conscience.**

In light of the broad protections for the conscience of health care
practitioners in state, federal, and international law, as well as the
long tradition of protecting conscience in American history, HHS's
proposed rule should be uncontroversial. Unfortunately, it is not. And
the vehement, negative reactions of those who oppose the rule
demonstrate how necessary the rule is. We address two of the most common
objections below.

> **a. Protections for those who conscientiously object to dispensing
> contraception are appropriate and are consistent with providing
> adequate access to health care.**

Perhaps the most common objection to the proposed rule is that it will
allow health care practitioners to opt out of providing common
reproductive care services---such as Plan B emergency
contraception---thus limiting women's access to basic health care.[^33]
This argument is inadequate for several reasons.

i.  **Protections for those who conscientiously object to dispensing
    contraception are just as appropriate as protections for those who
    conscientiously object to abortion.**

First, this argument fails to explain why conscientious objectors should
be protected when they object to abortion and sterilization, but not
when they object to contraception. Many health care practitioners
sincerely believe that certain types of contraception---namely, those
that result in the destruction of a fertilized egg---are tantamount to
abortion.[^34] For these practitioners, dispensing Plan B contraception
violates their conscience just as much as assisting in an abortion.
Their refusal to dispense Plan B should therefore be entitled to the
same legal protection.

Some opponents counter that those who conscientiously object to abortion
should not be protected either. But this position is often plagued by
inconsistency as well. Those who oppose conscientious objection in the
abortion context often *support* conscientious objection for doctors who
refuse to administer a lethal injection, or for individuals who refuse
to bear arms. But why support one and not the other? In many cases,
opponents of the proposed rule respect conscience only insofar as it
agrees with their own personal or political beliefs; but that is no
respect for conscience at all.

Other opponents argue that abortion is different because women have a
constitutional right to an abortion. But this argument confuses a
negative right with a positive one. That is, the constitutional right to
an abortion is a right to be *free from government interference* in
certain decisions regarding an abortion; it is not (and has never been
recognized in the law as) an affirmative right to *command the
assistance of others* in receiving an abortion. That is especially true
when commanding the assistance of others would violate their sincerely
held religious beliefs. In short, there is no principled basis for
supporting conscientious objection in the context of capital punishment
and military service, while opposing conscientious objection in the
context of abortion or contraception.

ii. **Protections for those who conscientiously object to dispensing
    contraception are consistent with providing adequate access to
    health care.**

Another variation of this objection is that allowing conscientious
objection in the context of contraception will reduce the availability
of contraception, thus harming women's health. There are three problems
with this argument. First, opponents rarely back this argument up with
any empirical evidence of the alleged harms that would result from
conscientious objection to contraceptives---namely, limited access to
health care and detrimental effects on women's health. Most opponents
simply cite purely hypothetical scenarios---such as "a poor teenager
living in a rural area that has a lone pharmacy." As experts in
religious liberty---not access to health care---we will leave it to
economists and health care experts to debate the available empirical
evidence. But at least one expert has argued that conscientious
objection to dispensing contraceptives has not adversely affected
women's access to health care:

> These refusals \[to dispense contraceptives\] do not appear to have
> erected a genuine barrier to women's access---instead it has been more
> of a temporary inconvenience. For example, one complaint filed with
> the Washington Board of Pharmacy indicated that the woman obtained
> \[emergency contraception\] less than an hour after the initial
> refusal. Other women by their own accounts have had to drive 45
> minutes to find a pharmacy. The relative ease with which women can
> find \[emergency contraception\] is not particularly surprising. Women
> can get \[emergency contraception\] at Planned Parenthood's network of
> nearly one thousand across the country, many of which are in rural and
> impoverished areas. A number of online drugstores will also deliver
> overnight to the patient's home.[^35]

Second, problems of access to contraception (or other forms of medical
care) can be solved by measures far short of forcing health care
practitioners to violate their conscience. Illinois, for example,
requires pharmacies that do not carry emergency contraception to post a
sign directing patients to other pharmacies that do.[^36] Such
information-forcing rules are "much less draconian than forcing all
pharmacies to stock EC . . . or forcing all pharmacists to dispense
it."[^37] Moreover, "\[i\]mposing such duties on facilities is
preferable to mandates on individual pharmacists since it leaves
individuals room for conscience."[^38]

Third, the access argument is based on the subtle assumption that most
conscientious objectors are just bluffing. According to critics,
conscientious objectors don't really care about their religious beliefs
enough to maintain them in the face of opposition; rather, faced with
the choice between dispensing contraceptives and being punished, most
health care practitioners will simply cave in and dispense
contraceptives.

That, however, is not always the case. Many pharmacists will resign
rather than violate their sincerely held religious beliefs; many, in
fact, have already been forced to do so.[^39] Pressuring those
pharmacists to violate their consciences, then, will not increase access
to health care for anyone; in fact, it will significantly *reduce*
access to health care for everyone who is not seeking contraception. We
have yet to see an opponent of the proposed rule that takes this
significant cost into account.

In sum, the fact that the proposed rule might protect those who
conscientiously object to dispensing certain types of contraception is
not an adequate basis for opposing the rule.

> **b. Conscientious objectors should not be forced to leave their
> jobs.**

Another common (and unfortunate) response to the proposed rule is that
conscientious objectors in the health care context should simply find a
different job---one that does not conflict with their consciences. This
argument, too, fails for several reasons.

First, of course, as explained above, this argument is inconsistent with
state and federal law. Federal law has never forced OB/GYNs to choose
between their conscience and their job, any more than it forces Quakers
to choose between the conscience and their country. The result should be
the same with respect to other health care practitioners, such as
pharmacists, who hold similar religious or moral beliefs.

Second, this argument would exclude a significant portion of the general
population from an occupation solely because of their religious or moral
beliefs. Such discrimination would never be acceptable on the basis of
race, gender, or national origin; it is no more acceptable on the basis
of religion. Of course, if a health care practitioner desires to
specialize in an area where he or she objects to the vast majority of
the work (not a likely scenario), such a desire need not be
accommodated. But that is not the issue here. Just as anesthesiologists
can do the vast majority of their work without participating in assisted
suicide, OB/GYNs can do the vast majority of their work without
participating in abortions, and pharmacists can do the vast majority of
their work without dispensing contraceptives. Their conscience-based
objection to a small part of their work should not disqualify them from
the entire occupation.

Third, the "get another job" argument ignores the fact that many health
care practitioners entered their field long before the practices they
object to became part of the profession. Many OB/GYNs entered their
field when assisting in an abortion was still a criminal act. Most
pharmacists entered their field long before Plan B became widely
available.[^40] And many medical researchers entered their field long
before stem cell research became a reality. It is particularly
deplorable to force these individuals out of their profession simply
because new practices or technologies arose that conflict with their
deeply held religious beliefs.

Finally, the "get another job" argument fundamentally conflicts with the
claim that protecting conscientious objectors will restrict access to
health care. Opponents of conscientious objection cannot, on the one
hand, claim that the sky is falling because of a lack of access to basic
health care, while on the other hand argue that everyone who objects to
performing an abortion or dispensing contraceptives should be driven
from the profession. To the contrary, the best way to *maximize* access
to health care is to protect a large swath of the population that would
otherwise be excluded from the health care profession because of their
religious or moral beliefs. That is precisely what the proposed rule is
designed to do.

**[Conclusion]{.underline}**

Protections for conscience are not only older than the Constitution, but
have been written directly into the text of the Constitution. And
protections for conscience in the health care context are widely
guaranteed in state, federal, and international law. HHS's proposed rule
falls well within this tradition, and The Becket Fund heartily supports
it.

> Sincerely,

![](media/image2.png){width="1.9347222222222222in"
height="0.43472222222222223in"}

> Kevin J. "Seamus" Hasson
>
> President
>
> The Becket Fund for Religious Liberty

[^1]: Health Programs Extension Act § 401, Pub. L. No. 93-45, 87 Stat.
    91, 95 (June 18, 1973), codified at 42 U.S.C. § 300a-7(b)-(c)(1).

[^2]: 42 U.S.C. § 300a-7(c)(1).

[^3]: 42 U.S.C. § 300a-7(e).

[^4]: 42 U.S.C. § 300a-7(c)(2) (emphasis added).

[^5]: *See* 42 U.S.C. § 201 *et seq.*

[^6]: 42 U.S.C. § 245.

[^7]: Consolidated Appropriations Act, 2008, Public Law No. 110-161,
    Div. G, § 508(d), 121 Stat. 1844, 2209 (Dec. 26, 2007).

[^8]: Robin Fretwell Wilson, *Matters of Conscience: Lessons for
    Same-Sex Marriage from the Healthcare Context*, *in* [Same Sex
    Marriage and Religious Liberty]{.smallcaps} 90-91 (Douglas Laycock
    *et al.* eds. 2008) (summarizing state conscience protections).

[^9]: These include Arkansas, Georgia, Mississippi and South Dakota.
    [Ark. Code Ann.]{.smallcaps} § 20-16-304 (1973); [Ga. Comp. R. &
    Regs. R.]{.smallcaps} 480-5-.03(n) (2001); [Miss. Code
    Ann.]{.smallcaps} § 41-107-1 (2004); [S.D. Codified
    Laws]{.smallcaps} § 36-11-70 (1998).

[^10]: [Oregon Revised Statutes]{.smallcaps} § 127.885(4) ("No health
    care provider shall be under any duty, whether by contract, by
    statute or by any other legal requirement to participate in the
    provision to a qualified patient of medication to end his or her
    life in a humane and dignified manner."); *id.* at 127.885(2) ("No
    professional organization or association, or health care provider,
    may subject a person to censure, discipline, suspension, loss of
    license, loss of privileges, loss of membership or other penalty for
    participating or refusing to participate in good faith compliance
    with \[the Oregon Death with Dignity Act\].")

[^11]: *See, e.g.*, [Arizona Revised Statutes]{.smallcaps} §
    36-3205(C)(1) (protecting health care providers who "fail\[\] to
    comply with a \[patient's health care\] decision or a direction that
    violates the provider's conscience"); [California Probate
    Code]{.smallcaps} § 4734 ("A health care provider may decline to
    comply with an individual health care instruction or health care
    decision for reasons of conscience. . . . A health care institution
    may decline to comply with an individual health care instruction or
    health care decision if the instruction or decision is contrary to a
    policy of the institution that is expressly based on reasons of
    conscience and if the policy was timely communicated to the patient
    or to a person then authorized to make health care decisions for the
    patient.")

[^12]: [Abortion Act 1967]{.smallcaps} (c. 87).

[^13]: *See, e.g.*, [Criminal Code Act 1983 (NT)]{.smallcaps}, § 174(2)
    ("No person is under a duty, whether by contract or otherwise, to
    procure or to assist in procuring the miscarriage of a woman or girl
    or to dispose of or to assist in disposing of an aborted foetus if
    he has a conscientious objection thereto.") (*quoted in* Natasha
    Cica, Law and Bills Digest Group, Parliament of Australia,
    Parliamentary Library, *Abortion Law in Australia* (Research Paper
    1, 1998-99) available at
    <http://www.aph.gov.au/library/pubs/rp/1998-99/99rp01.htm>.

[^14]: *See* [The Health (Family Planning) Act, 1979]{.smallcaps} (No.
    20/1979), § 11 ("Nothing in this Act shall be construed as obliging
    any person to take part in the provision of a family planning
    service, the giving of prescriptions or authorisations for \[family
    planning\], or the sale, importation into the State, manufacture,
    advertising or display of contraceptives."), available at
    <http://acts2.oireachtas.ie/zza20y1979.1.html>; *see also*
    [Regulation of Information (Services Outside the State For
    Termination of Pregnancies) Act]{.smallcaps}, 1995 (No. 5/1995), §§
    2, 13 ("Nothing in this Act shall be construed as obliging any
    person to give \[information required by a woman for the purpose of
    availing herself of services provided outside the State of Ireland
    for the termination of pregnancies\]"), available at
    [http://www.irishstatutebook.ie/\
    1995/en/act/pub/0005/index.html]{.underline}.

[^15]: *See* [Contraception, Sterilisation, and Abortion Act
    1977]{.smallcaps} No. 112 § 46(1) ("Notwithstanding anything in any
    other enactment, or any rule of law, . . . no medical practitioner,
    nurse, or other person shall be under any obligation (a) To perform
    or assist in the performance of an abortion or \[sterilization\];
    \[or\] (b) To fit or assist in the fitting, or supply or administer
    or assist in the supply or administering, of any contraceptive, or
    to offer or give any advice relating to contraception . . . if he
    objects to doing so on grounds of conscience."); *see also id.* at §
    46(2) ("It shall be unlawful for any employer--- (a) To deny to any
    employee or prospective employee any employment, accommodation,
    goods, service, right, title, privilege, or benefit merely because
    that employee or prospective employee objects on grounds of
    conscience to in subsection (1) of this section \[*i.e.*, assisting
    in an abortion or sterilization or the supply of any
    contraceptive\]; or (b) To make the provision or grant to any
    employee or prospective employee of any employment, accommodation,
    goods, service, right, title, privilege, or benefit conditional upon
    that other person doing or agreeing to do any thing referred to in
    that subsection."), available at
    <http://www.legislation.co.nz/act/public/1977/0112/latest/DLM17680.html>.

[^16]: *See generally* E.U. Network of Independent Experts on
    Fundamental Rights, [Opinion N° 4-2005: The Right to Conscientious
    Objection and the Conclusion by EU Member States of Concordats with
    the Holy See]{.smallcaps} 9-13 (Dec. 14, 2005) (summarizing laws on
    conscientious objection in the health care context in Austria,
    Belgium, Cyprus, Denmark, France, Germany, Hungary, Italy, Portugal,
    and Spain).

[^17]: UN Human Rights Committee, General Comment No. 22 (Art. 18).

[^18]: *See also* [Universal Declaration of Human Rights]{.smallcaps},
    Art. 18 ("Everyone has the right to freedom of thought, conscience
    and religion; this right includes freedom to change his religion or
    belief, and freedom, either alone or in community with others and in
    public or private, to manifest his religion or belief in teaching,
    practice, worship and observance.").

[^19]: AMA House of Delegates Policy 5.995 (Issued 1973; reaffirmed
    1986, 1996, 1997, 2000) (emphasis added).

[^20]: This description is drawn from the longer account in Kevin Seamus
    Hasson[, The Right to Be Wrong]{.smallcaps} 45-67 (Encounter 2005)
    ("Hasson").

[^21]: *Id.*; *see also* Margaret Hope Bacon[, The Quiet Rebels: the
    Story of Quakers in America]{.smallcaps} 73 (Basic Books 1969).

[^22]: [U.S. Const.]{.smallcaps} art. II, § 1.

[^23]: [U.S. Const.]{.smallcaps} art. VI.

[^24]: Hasson at 48.

[^25]: J. G. Randall & Richard Nelson Current[, Lincoln the
    President]{.smallcaps} 172-75 (University of Illinois Press 1999).

[^26]: *United States* v. *Seeger,* 380 U.S. 163, 165-66 (1965); Hasson
    at 52.

[^27]: *See, e.g.*, [Colo. Rev. Stat]{.smallcaps}. § 28-4-103.5; [Or.
    Const.]{.smallcaps} art. X § 2; [Pa. Const.]{.smallcaps} art. III §
    16.

[^28]: The two recipients were Desmond Doss (WWII) and Thomas Bennett
    (Vietnam). Both were medics who went onto the field of battle
    unarmed to rescue injured soldiers. *See* Larry Smith & Gen. H.
    Norman Schwarzkopf[, Beyond Glory: Medal of Honor Heroes in their
    Own Words]{.smallcaps} 90-107 (W. W. Norton & Company 2003); Ron
    Owens & Ronald J. Owens[, Medal of Honor: Historical Facts and
    Figures]{.smallcaps} 149 (Turner Publishing Company 2004).

[^29]: *West Virginia State Board of Education* v. *Barnette,* 319 U.S.
    624 (1943).

[^30]: *Id.*

[^31]: *See Wisconsin* v. *Yoder,* 406 U.S. 205 (1972).

[^32]: *Sherbert* v. *Verner,* 374 U.S. 398 (1963).

[^33]: Some have argued that the proposed rule will *not* apply to
    common contraceptives; these comments assume for the sake of
    argument that it will.

[^34]: *See* Comments of the United States Conference of Catholic
    Bishops at 4 (September 12, 2008) ("Catholic moral teaching rejects
    the deliberate destruction of a member of the human species at any
    stage after fertilization.").

[^35]: David Hyman & Robin Fretwell Wilson, *Health Care Regulation: The
    Year in Review* 6 (May 4, 2007).

[^36]: *See* 68 [Ill. Admin. Code]{.smallcaps} 1330.91(k) (2006).

[^37]: David Hyman & Robin Fretwell Wilson, *Health Care Regulation: The
    Year in Review* 6-7 (May 4, 2007).

[^38]: *Id.*

[^39]: *See, e.g.*, Debbie Elliot, "Alabama Nurses Quit over
    Morning-After Pill," All Things Considered, *National Public Radio*
    July 28, 2004 (describing how 11 Alabama nurses resigned their
    positions at state health clinics rather than provide emergency
    contraception against their moral convictions), available at
    http://www.npr.org/templates/story/story.php?storyID=3627209.

[^40]: As of 2005, one quarter of practicing pharmacists were over the
    age of 55. David Hyman & Robin Fretwell Wilson, *Health Care
    Regulation: The Year in Review* 6-7 (May 4, 2007) (citing ASHP Task
    Force on Pharmacy's Changing Demographics, Preliminary Report).