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House Bill 2711 |
Submitted to
the Committee on Federal and State Affairs
Kansas House of Representatives
February 20, 2002
USCCB
Thank you for providing us this opportunity
to submit written testimony on the Health Care Providers' Rights of
Conscience Act (HB 2711). The United States Conference of Catholic Bishops
is a nonprofit corporation organized under the laws of the District of
Columbia, whose members are the active Catholic Bishops in the United
States. The Conference advocates and promotes the pastoral teaching of the
Bishops on diverse issues, including access to health care, concern for
the poor and vulnerable, the protection of human rights (including
religious freedom and rights of conscience) and the sanctity and dignity
of human life. As a national conference we do not take formal positions on
state legislation, but we lend advice and assistance to local Bishops and
state Catholic conferences at their request. We have been asked by the
Kansas Catholic Conference to provide some background on the right of
conscience on the federal and state levels and to discuss growing threats
to this fundamental right.
The
Well-Established Legal Tradition on Rights of Conscience
The basic principle that no one ought to be forced to act in violation of
his or her conscience is recognized and protected by a vast body of laws.
In federal law, this principle is recognized in a number of provisions
that protect conscientious objection to a range of procedures, including abortion,1
sterilization,2 contraception3
and executions.4
This principle is also recognized in the vast majority of states. After
the Supreme Court handed down its Roe v. Wade decision in 1973,
prompting Congress to pass its first legislation protecting the right to
refuse to provide abortions, many states passed similar laws. Today Kansas
and almost all other states provide some protection for the right of
conscientious objection to involvement in abortion. Some states also
protect providers who object to other kinds of procedures, including
euthanasia, sterilization, artificial insemination, abortifacient drugs
and contraception. The State of Illinois has adopted a comprehensive right
of conscience law, under which the protection of physicians and other
health care personnel extends to any procedure "which is contrary to
the conscience of such physician or health care personnel." The State
of Washington provides comprehensive conscience protection to individual
health care providers and to religiously affiliated health care plans and
facilities.
Inadequacies
in Current Legal Protection
While the principle of protection for conscience rights is widely
acknowledged, its implementation has been far from perfect, creating a
need for more comprehensive and forward-looking legislation.
Most federal conscience protections apply only to specific federal
programs or are tied to the receipt of federal funds.5
Their scope is limited by this fact, and by the narrow range of procedures
covered.
Though the majority of states acknowledge and protects rights of
conscience, their laws suffer from similar inadequacies. Most of these
laws are limited to abortion. Only a few states protect health care
providers from being forced to perform sterilizations. Few existing laws
protect the full range of individuals and institutions that may be
involved in providing health care in our increasingly complex health care
system. Many states do not protect the rights of conscience with respect
to newly created technologies such as cloning or embryonic research, or
even current misuses of older technology such as "surrogate"
motherhood. States have also not addressed the need to protect providers
with respect to new threats to human life at the end of life, such as
physician-assisted suicide and euthanasia. As noted by one commentator:
"As the range of medical technologies continues to expand..., the
number of medical services involving potentially serious conflicts of
conscience is certain to increase."6
Finally, with new organized threats to conscience on the horizon, it is
especially important for states to expand and strengthen their existing
protections now. These threats have become especially apparent in recent
years in the fields of abortion and contraception, as reviewed below.
Attempts
to Force Health Care Providers to Perform Abortions and Other
"Reproductive" Services
Existing conscience laws are under increasing attack by abortion rights
activists, who want to require all health care personnel and hospitals to
provide "the full range of reproductive services," including
abortion. Not two years ago, there was a bold and unsuccessful attempt at
a meeting of the American Medical Association's House of Delegates to win
AMA endorsement for legislation requiring all hospitals to provide a
"full range of reproductive services."7
Fortunately the delegates ultimately defeated this misguided proposal,
instead reaffirming AMA policy supporting conscience which states that
"neither physician, hospital, nor hospital personnel shall be
required to perform any act violative of personally held moral principles."8
There have been other attempts to force hospitals to provide abortions and
other morally controversial services. In 1997, for example, the Alaska
Supreme Court ordered a private non-sectarian hospital that had a policy
against abortion to begin performing
abortions.9 And in New Hampshire in 1998,
after "reproductive rights"groups learned that a newly merged
hospital would no longer perform elective abortions and sterilizations,
they approached the New Hampshire attorney general to challenge the
merger. The New Hampshire attorney general issued an opinion concluding on
several grounds that the merger is subject to the law of charitable trust
and must be reviewed in probate court. Under the pressure of the attorney
general, the merger dissolved. Subsequently, abortion rights groups made
this case a model for one of their strategies to prevent mergers if such
procedures will not be performed or to force newly merged hospitals to
perform them.10
The American Civil Liberties Union (ironically named in this context)
recently has published a report and advocacy kit aimed at requiring all
hospitals, including Catholic hospitals, to perform abortions and other
procedures which violate their conscientious convictions.11
Contraceptive
Mandates and "Emergency Contraception"
Attacks on conscience have not always been as overt as these. A large part
of the campaign to undo conscience rights in the abortion context has
proceeded subtly and incrementally and has trampled on other conscience
rights along the way. For example, to gain momentum for their campaign,
abortion rights activists have begun to erode the right of conscience as
it relates to paying for and providing contraception. Seventeen states now
have adopted, and two more—Massachusetts and New York—are actively
considering, mandates that require employers to provide insurance coverage
for contraceptives if they provide coverage for other prescription drugs.
Advocacy to mandate contraceptive coverage is noteworthy for a number of
reasons, not the least of which is the fact that in all but one state,
these mandates extend to so-called "emergency contraception."
"Contraception" is a misnomer in this case, because this regimen
commonly operates not to prevent conception but rather to ensure
the death of an embryo after conception by interfering with implantation
in the womb.12 It is
thought that "this mode of action could explain the majority of cases
where pregnancies are prevented by the morning after pill."13
These efforts to mandate "contraceptive" drug coverage are
therefore attempts to obscure or destroy the line between abortion and
contraception, and to universalize coverage of abortifacient drugs at the
expense of conscience rights. Virtually all the mandates enacted thus far
provide either no conscience protection or inadequate protection. Only one
mandate safeguards religious and moral beliefs. A dozen of the mandates
contain provisions protecting religious employers, but half of these
define "religious employer" so restrictively that the vast
majority of religious organizations are not covered. In some cases, the
statutory language ignores the religious character of organizations such
as Catholic Charities and Catholic grade schools, treating them instead as
"secular" institutions with no conscience rights whatever.
National groups advancing this campaign have had a federal contraceptive
mandate introduced in Congress as well. That bill not only fails to
provide any conscience protection (contradicting many federal laws that
protect religious beliefs and moral convictions), but would even override
all existing conscience protections in state contraceptive mandates,
inadequate though many of these already are.14
This bill, too, would cover abortifacient "emergency
contraception." The movement to impose contraceptive coverage is
really a movement to mainstream abortion as a medical norm and chip away
at the right of conscience.
Mandating
"Emergency Contraception" in Hospitals
Conscience rights are also at risk in bills to mandate the administration
of "emergency contraception" to rape victims. All Catholic
hospitals observe ethical directives which allow provision of emergency
contraception to rape victims when its mode of action would be
contraceptive, i.e., preventing ovulation or fertilization. Catholic
hospitals, however, will not administer this drug as an abortifacient, if
conception has already occurred. A handful of states15
are considering or have considered specific mandates for emergency
contraception, which are designed to override the conscience rights of
Catholic hospitals and others.
Though only a few state legislatures are considering such measures, an
organized national effort—the Abortion Access Project—is operating in
twenty-one states16
to garner support for them. It is quite clear from the project's
materials, including fact sheets and resources on the project's website,
that it has targeted Catholic hospitals.17
Mandating these abortifacient drugs is an incremental means to requiring
hospitals to perform abortions generally—indeed, the group's materials
on emergency contraception are included in a kit titled: "Designing A
Campaign To Increase Hospital-based Abortion
Services."18
Why Are
There Efforts to Undermine Conscience Now?
With conscience laws on the books for nearly thirty years, what accounts
for these renewed efforts to undermine rights of conscience? Part of the
answer lies in a desperate desire by abortion proponents and others to
legitimize procedures that carry a stigma in the medical profession and
society at large. Legalizing abortion has not made it respectable, and few
doctors want to train in or perform abortions. Half of Americans consider
abortion equivalent to murder.19
If abortion had to be provided in all hospitals, this would lend the
impression that it is basic health care. In 1995, when he called for
intensified efforts to require abortion training for all medical
residents, abortion advocate Dr. David Grimes declared that "making
abortion training a routine part of any residency...will put abortion back
in the mainstream of medicine."20
The procedures covered in the proposed Kansas legislation all have this
dynamic in common – that is, none of them is truly established on
medical or ethical grounds as basic health care, and so organized
campaigns are required to make them so by requiring everyone to be
involved in them. All these procedures are morally problematic or
controversial; some of them are illegal in all states (infanticide,
euthanasia); some, though quite new, are already illegal in a number of
states (cloning, destructive embryo research); and none of them can claim
to treat or cure an illness.
In the case of abortion, renewed threats to conscience can also be
explained by the fiercely competitive and commercial nature of the
abortion business. To generate the most business, abortion clinics have
located in urban areas almost exclusively, where there is a large
population base. "Abortion clinics are no different from other
speciality services, said Dr. William Ramos, who runs an abortion clinic
in Las Vegas. ‘In the entire state of Nevada, there is only one Lexus
dealer and only one Acura dealer', he said." With abortion, Dr. Ramos
continued, "there is less work and more income." But to achieve
the income that most abortionists expect, they must remain in cities.
"Clinic owners say they have little choice but to cluster in
cities—that is the only way they can find enough patients."
Additionally, in order to maintain their niche in the market, they often
refuse to train other physicians. "One doctor in Detroit....said that
when he finished medical school, trained in obstetrics and gynecology, he
asked abortion doctors in the area to train him. He was turned away."21
The reality is that public sentiment against abortion has grown even
stronger in recent years, and fewer women are seeking abortions. Hence
clinic owners have become even more protective of the "business"
they already have, and less willing to extend their reach to rural areas
where few women seek abortion. Rather than "setting up shop" in
such areas at a risk to their profit margin, they are advocating that all
hospitals be required to perform abortions.
Conclusion
Legislation that will protect conscience by prohibiting discrimination
against health care providers is urgently needed to counteract these
attempts nationwide to undo existing protections. Respect for conscience
has never been, nor should it be, especially controversial. Even Planned
Parenthood of Kansas and Mid-Missouri recognizes the right of conscience
in theory, saying that it is committed "to ensure an environment
which affirms...exercise of the individual conscience."22
The problem is that Planned Parenthood's respect for conscience is partial
and selective, and does not take account of the conscience rights of
individuals and institutions that disagree with its own view of
"reproductive health."
The proposed bill and other conscience protections recognize a basic
principle: no one, least of all a health care provider committed to
healing, should be forced to violate his or her conscience by
participating in procedures that he or she deems to be harmful or morally
wrong. Out of respect for religious freedom, concern for the ethical
integrity of the medical profession, and appreciation for the diversity of
our health system and our society, all should agree to help prevent such
coercion.
End Notes
1. See
42 U.S.C. § 300a-7(b) (prohibiting public discrimination against
individuals and entities that object to performing abortions on the basis
of religious beliefs or moral convictions); 42 U.S.C. § 300a-7(c)
(prohibiting entities from discriminating against physicians and health
care personnel who object to performing abortions on the basis of
religious beliefs or moral convictions); 42 U.S.C. § 300a-7(e)
(prohibiting entities from discriminating against applicants who object to
participating in abortions on the basis of religious beliefs or moral
convictions); 42 U.S.C. § 238n (prohibiting discrimination against
individuals and entities that refuse to perform abortions or train in
their performance); 20 U.S.C. § 1688 (ensuring that federal sex
discrimination standards do not require educational institutions to
provide or pay for abortions or abortion benefits).
[Back]
2. See
42 U.S.C. § 300a-7(b) (prohibiting public discrimination against
individuals and entities that object to performing sterilizations on the
basis of religious beliefs or moral convictions); 42 U.S.C. § 300a-7(c)
(prohibiting entities from discriminating against physicians and health
care personnel who object to performing sterilizations on the basis of
religious beliefs or moral convictions); 42 U.S.C. § 300a-7(e)
(prohibiting entities from discriminating against applicants who object to
participating in sterilizations on the basis of religious beliefs or moral
convictions). [Back]
3. See
Treasury and General Government Appropriations Act, 2002, Pub. L. No.
107-67, § 641, 115 Stat. 514, 554-5 (prohibiting health plans
participating in the federal employee health benefits program from
discriminating against individuals who, for religious or moral reasons,
refuse to prescribe or otherwise provide for contraceptives, and
protecting the right of health plans that have religious objections to
contraceptives to participate in the program).
[Back]
4.
See 18 U.S.C. § 3597(b) (providing that no state correctional
employee or federal prosecutor shall be required, as a condition of
employment or contractual obligation, to participate in any federal death
penalty case or execution if contrary to his or her moral or religious
convictions). [Back]
5.
See 42 U.S.C. §§ 300a-7(b), 300a-7(c), 300a-7(e) (conscience
protections limited to entities that receive and individuals who work in
entities that receive federal funds under the Public Health Service Act,
Community Mental Health Centers Act, Developmental Disabilities Services
and Facilities Construction Act, or Developmental Disabilities Assistance
and Bill of Rights Act of 2000); Treasury and General Government
Appropriations Act, 2002, Pub. L. No. 107-67, § 641, 115 Stat. 514, 554-5
(protections under only the federal employee health benefits program); 18
U.S.C. § 3597(b) (protects only prosecutors, correctional and other
enumerated personnel in the context of federal death penalty cases and
executions). [Back]
6. Lynn D.
Wardle, "Protecting the Rights of Conscience of Health Care
Providers," 14 J. of Legal Med. 177, 181 (1993).
[Back]
7. AMA
House of Delegates, Annual Meeting, 2000, Resolution 218. [Back]
8.
See Proceedings of the 2000 Annual Meeting of the AMA House of Delegates
(American Medical Association, Chicago, IL), June 2000, at 447. [Back]
9. Valley
Hospital Association, Inc. v. Mat-Su Coalition for Choice, 948 P.2d
963 (Alaska 1997). [Back]
10.
Hospital Mergers and the Threat to Women's Reproductive Health Services:
Using Charitable Assets Laws to Fight Back, National Women's Law
Center, 2001. [Back]
11. ACLU,
"Religious Refusals and Reproductive Rights," January 2002. [Back]
12.
See Preven
Emergency Contraception Prescribing Information (visited
02/12/02) [Back]
13. F.
Grou and I. Rodriguez, "The Morning After Pill, How Long After?"
171 American Journal of Obstetrics and Gynecology 1529-34 (1994). [Back]
14. Equity
in Prescription Insurance and Contraceptive Coverage Act of 2001, S. 104,
107th Congress (2001). [Back]
15.
Illinois, Florida, Maryland, New York, Wisconsin. [Back]
16.
See Abortion Access Project, "Hospital
Access Collaborative Newsletter" Fall 2001, (visited
02/15/02). [Back]
17.
See Abortion Access Project web site, www.abortionaccess.org, for Fact
Sheets, "Catholic Hospitals and the Charity Myth" and "The
Impact of Catholic Hospital Mergers on Women's Reproductive Health
Services," and the manual "Designing A Campaign To Increase
Hospital-based Abortion Services," especially Section C2,
"Catholic Hospitals and Emergency Contraception." [Back]
18. Abortion
Access Project, "Designing
A Campaign To Increase Hospital-based Abortion Services,"
available at (visited
02/11/02). [Back]
19. NY Times/CBS Poll, N.Y. Times, Jan. 16, 1998,
A1. [Back]
20. Med.
& Health, Feb. 29, 1995. [Back]
21. Gina
Kolata, As Abortion Rate Decreases, Clinics Compete for Patients,
N.Y. Times, Dec. 30, 2000, at A1. [Back]
22.
www.ppkmo.org (visited 02/12/02).
[Back]
__________________________
Secretariat for Pro-Life Activities
United States Conference of Catholic Bishops
3211 4th Street, N.E., Washington, DC 20017-1194 (202) 541-3070
February 26, 2002 Copyright © by United States
Conference of Catholic Bishops
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