Conscientious Objection to Warfare and Welfare

Saturday, January 4, 2014: 3:10 PM
Columbia Hall 2 (Washington Hilton)
Jeremy Kessler, Yale University
In the late 1960s, conscientious objectors scored a series of victories in the federal courts and within the administrative state. At the height of public dissatisfaction with American involvement in Vietnam, juries, judges, and executive bureaucrats had become increasingly sympathetic to the increasingly unorthodox claims of men who refused to fight. While the law of conscientious objection achieved this unprecedented power because of resistance to the warfare state, in the early 1970s the legal technology was quickly repurposed as a tool for making claims on the welfare state. My paper examines three sets of cases in which social movement actors used the law of conscientious objection not to excuse citizens from the duty of military service but to impose financial duties on the state.

In the first set of cases, former conscientious objectors argued that the refusal of the state to provide them veterans’ benefits constituted a fresh violation of their conscience. In the second set, female Catholic Air Force officers used the law of conscientious objection to challenge a government regulation that ordered the discharge of women who became pregnant in the line of duty.  The pregnant officers argued that the regulation was a form of religious discrimination, attaching a unique disability to women with conscientious objections to abortion. Finally, in the wake of Roe v. Wade, doctors, nurses, and hospitals invoked the language of conscience to argue that they should be able to refuse to provide reproductive healthcare services even while retaining their state and federal funding. These cases arose at the intersection of the anti-war, feminist, and Catholic legal communities and my paper will conclude by examining the ideological instability of their brief alliance.