The Emergence of Conscience Rights for Health Care Professionals: How We Moved Historically from Conscience to Conscience Rights

Recent debates about conscience rights of health care professionals have sometimes been conducted in a vacuum. But they have a history, going back in part to ancient times, but predominantly in the Christian era. The conscience rights issue represents a convergence of the developing concept of rights and the changing views of conscience. The first part of the story begins with the idea of conscience, an idea found in ancient philosophy and Christian thought, and more or less associated with private and individual internal moral guidance. Rights, subjective rights, came into their own some time in the Middle Ages, as individual claims in a legal or political context. However, with a few exceptions, individuals were not able to assert any religious rights of conscience until much later, though discussion of the possibility began in the late sixteenth century. The thrust of this paper is to trace the convergence of rights claims and conscience. In the seventeenth century tolerance shifted, in theory, to advocacy of certain religious conscience rights as natural rights. In the eighteenth century, these rights were embodied in the First Amendment Free Exercise Clause. Conscientious objection from those opposing military service on religious grounds also arose during this period. The conscientious objection exceptions and cases became the model for the way courts addressed conscience rights. Preferred rights doctrines in the twentieth century, combined with greater constitutional sensitivity on the part of Federal courts and Congress, as well as human rights theories, helped to define discussions of conscience rights of health care professionals