Supreme Court’s NIFLA v. Becerra’s Boost to Medical Conscience

By Wesley J. Smith

Justice Thomas can be counted upon to write erudite and narrowly crafted, to-the-point decisions. Such was the case in NIFLA v. Becerra, the ruling upholding the free-speech rights of crisis-pregnancy centers against attack by the State of California.

I can’t add much to Ed Whelan’s excellent analysis. But one Supreme Court case leads to another, and I do think that the ruling is also good news for those who seek to protect “medical conscience” — the right of doctors and other medical professionals to refuse participation in legal medical procedures with which they have a religious or moral objection.

Here is the text that I think offers material help to future litigators seeking to protect medical conscience (citations omitted):

When the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” Professionals might have a host of good faith disagreements, both with each other and with the government, on many topics in their respective fields.

Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.

“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” and the people lose when the government is the one deciding which ideas should prevail.

If the government can’t decide “which ideas should prevail” in the professional discourse, surely it also can’t force doctors, nurses, and others to participate in legal elective medical procedures with which they have a moral and/or religious objection.

Moreover, refusing to abort, assist a patient’s suicide, or circumcise an infant boy — to name a few examples of legal but morally contentious medical procedures — would also entail speech that explains why the medical professional objects. Indeed, the refusal alone communicates a strong message that these procedures may well be legal, but in the opinion of the dissenting professional, they are not right.

Powerful forces want to compel doctors to violate their consciences in their professional lives. Becerra might have laid the foundation for the construction of a safe constitutional harbor protecting medical-conscience rights.

Editor’s note. Wesley’s great columns are posted at National Review Online and are reposted with the author’s permission.