Michael Gaynor
The First Amendment affords conscience protection to religious persons as well as atheists
By Michael Gaynor
April 16, 2009

American health care professionals who, because of religious scruples, are unwilling to participate in abortion deserve at least as much consideration as alien conscientious objectors. Their religious scruples should be respected too, even by the most pro-abortion President in American history.

On March 16, 2009, Cardinal Francis George, speaking for the United States Conference of Catholic Bishops, stated:

"On Friday afternoon, February 27, the Obama Administration placed on a federal website the news that it intends to remove a conscience protection rule for the Department of Health and Human Services. That rule is one part of the range of legal protections for health care workers — for doctors, nurses and others — who have objections in conscience to being involved in abortion and other killing procedures that are against how they live their faith in God.

"As Catholic bishops and American citizens, we are deeply concerned that such an action on the government's part would be the first step in moving our country from democracy to despotism. Respect for personal conscience and freedom of religion as such ensures our basic freedom from government oppression. No government should come between an individual person and God — that's what America is supposed to be about. This is the true common ground for us as Americans. We therefore need legal protection for freedom of conscience and of religion — including freedom for religious health care institutions to be true to themselves.

"People understand what really happens in an abortion and in related procedures — a living member of the human family is killed — that's what it's all about — and no one should be forced by the government to act as though he or she were blind to this reality."


The truth is that the so-called constitutional right to abortion was created by a group of judicial activists sitting as United States Supreme Court Justices, not by the United States Constitution itself.

In fact, the United States Constitution left the regulation of abortion to the states, but the First Amendment was adopted to guarantee freedom of religion, including the right of health care professionals not to be forced to perform procedures that violate their fundamental religious beliefs.

Government cannot constitutionally force atheistic children to recite prayers in public schools or religious health care professionals to participate in abortions as a condition of employment.

In Davis v. Beason, 133 U.S. 333 (1890), the United States Supreme Court explained what was meant by the word religion as used in the First Amendment.

The Court stated:

"The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons and enforce an outward conformity to a prescribed standard led to the adoption of the amendment in question. It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society. With man's relations to his Maker and the obligations he may think they impose and the manner in which an expression shall be made by him of his belief on those subjects no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with."

President Bush rightly respected the First Amendment rights of health care professionals.

President Obama should do so too.

Refusal to respect the right of conscience of persons not to participate in abortions would an unconstitutional "oppressive" measure designed to "enforce an outward conformity to a prescribed standard" contrary to the religious beliefs of those persons.

In Girouard v. United States, 328 U.S. 61 (1946), the United States Supreme Court held that "an alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship...." The Court stated: "Petitioner's religious scruples would not disqualify him from becoming a member of Congress or holding other public offices. While Article VI, Clause 3 of the Constitution provides that such officials, both of the United States and the several States, 'shall be bound by Oath or Affirmation, to support this Constitution,' it significantly adds that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' The oath required is in no material respect different from that prescribed for aliens under the Naturalization Act. It has long contained the provision 'that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.' R.S. 1757, 5 U.S.C. 16, 5 U.S.C.A . 16. As Mr. Chief Justice Hughes stated in his dissent in the Macintosh case, 283 U.S. at page 631, 51 S.Ct. at page 577, 'the history of the struggle for religious liberty, the large number of citizens of our country from the very beginning who have been unwilling to sacrifice their religious convictions, and, in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God'-these considerations make it impossible to conclude 'that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties.'"

American health care professionals who, because of religious scruples, are unwilling to participate in abortion deserve at least as much consideration as alien conscientious objectors. Their religious scruples should be respected too, even by the most pro-abortion President in American history.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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