As documented by Americans United for Life from the Annals of Congress, an early draft of the First Amendment written by James Madison included the following: The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed" (emphasis added). Though not specifically included in the finally adopted version, this wording indicates the intent of the Founders and a fundamental principle of the First Amendment.

Perhaps that expression of principle influenced the framers of the Nebraska Constitution in 1875, because the principle is captured and set forth in a similar manner. Article I, Section 4 on religious freedom presents this statement of guiding policy: "No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted." (emphasis added)

The state constitution also includes this significant provision as Article III (Legislative Power), Sec. 30: "The Legislature shall pass all laws necessary to carry into effect the provisions of this constitution."

These two provisions of the Nebraska Constitution are relevant to a compelling and escalating concern; namely, protecting the religious freedom and rights of conscience of health care providers, both individuals and institutions. Ideological and political aggressiveness regarding health care and health professions, particularly in relation to morally problematic services, such as abortion, sterilization, contraception, artificial insemination, euthanasia, assisted suicide and counseling to affirm and enhance immoral relationships, increasingly threatens to penalize and drive away persons of faith and conscience. Discrimination in employment and governmental coercion in licensing are mechanisms by which health care providers can be forced to choose between their professions and their convictions of conscience.

This is not about who pays for health care. That’s another context involving threats to conscience. This is about providers and their rights of conscience.

A number of organizations and websites provide evidence of attacks on the freedom of health care providers and institutions to provide health care without violating their religious beliefs and moral convictions. Pharmacists have been targets, as abortion advocates seek to require them to dispense "emergency contraceptives" and others that have post-fertilization, life-ending mechanisms of action.

Here in Nebraska, for instance, licensing boards for Mental Health Practice and Psychology have shown intent to require licensees to provide, or be complicit in providing, counseling services to affirm and enhance same-sex relationships.

Nebraska public policy is limited with regard to protection for religious freedom and rights of conscience throughout health care. The cited provisions of the Nebraska Constitution notwithstanding, the Legislature has not acted to prevent interference with rights of conscience comprehensively. Except in limited instances involving abortion, such rights have not been codified or provided with remedies.

LB 461, as proposed to be amended by its sponsor, Senator Pete Pirsch of Omaha, would establish by statute that individual health care providers have the right not to participate in any health care function that would violate their religious beliefs, moral convictions and/or ethical principles. Likewise, the proposed amendment would establish that health care facilities have the right not to participate in any health care function that would violate their institutional conscience as determined by reference to its existing mission statement, constitution, bylaws, etc.

For purposes of the legislation, "participate" and "health care function" are defined comprehensively.

The amendment protects health care providers and institutions from being required by employers, or governmentally coerced, to participate in any health care function. In this context, it would prohibit discrimination in employment and immunize providers and facilities from civil, criminal and administrative liability. Authorized remedies would include civil causes of action for damages and/or injunctive relief.

Sen. Pirsch’s sound amendment is awaiting action by the Legislature’s Judiciary Committee. Efforts are being made to address sincere concerns about the scope and wording of the amendment, and to separate legitimate concerns from misconceptions, exaggerated reactions and bogus interpretations of the legislation.

Unfortunately, time is running short on the session—only 14 working days remain. The matter is urgent. Nebraskans—especially those involved in health care—who wish to see these basic rights protected in law, to see the guiding principle in the state constitution brought alive with substance, should contact state legislators, especially members of the Judiciary Committee, and express support for the amended version of LB 461. Contact information is available at the Legislature’s website (www.nebraskalegislature.gov). More information is available at: www.nebcathcon.org.