Illinois controversy about legislative overreach
Catholic bishops withdraw opposition, others remain opposed
Confrontation centres on complicity
Among American states, Illinois has the most comprehensive protection of
conscience legislation, the
Health Care Right of Conscience Act (HCRCA). In 2009 an attempt was made
to nullify the Act with respect to abortion, contraception and
related procedures by introducing
HB 2354 (Reproductive
Health and Access Act), but the bill died in committee two years
later.1 Now it appears that the HRCA may
be changed by Senate Bill 1564. Critics say the bill tramples upon physician
freedom of conscience,2 while the bill's
supporters, like the American Civil Liberties Union (ACLU), claim that the
bill is "about making sure no one is withholding information from the
SB 1564 was actually
drafted by the ACLU,3 but it was
introduced by Illinois Senator Daniel Biss. He said that the amendments were
partly in response to the case of a woman who was miscarrying over several
weeks, but who was refused "diagnosis or options" in the hospital where she
had sought treatment.4 Senator Bliss
was apparently referring to the story of Mindy Swank, who testified before a
Senate legislative panel about her experience. The Illinois Times
reported that she suffered "a dangerous, weeks-long miscarriage" because of
the refusal of Catholic hospitals to provide abortions.5
Unfortunately, the Illinois Senate Judiciary Committee does not
record or transcribe its hearings, and conflicting news reports make it
difficult to determine exactly what happened at some critical points in her
story. Moreover, it appears that the Committee did not hear from the
hospitals and physicians who were involved with Ms. Swank, so we are left
with a one-sided account of what took place.6
Nonetheless, as a first step in considering the particulars of the
bill and the controversy it has engendered, it is appropriate to review the
evidence offered to support it. We will begin with Mindy Swank's testimony,
even if some details are lacking, and then examine the experience of Angela
Valavanis, a second case put forward by the ACLU to justify SB 1564.7
Ms. Swank and her husband were expecting a second
child, but, at what seems to have been about twenty weeks gestation, she was
informed that the infant had "several abnormalities" that made it unlikely
it would live, that having the child might compromise her ability to bear
more children "and possibly endanger her life."5
That fetal abnormality might have such effects seems most unusual. The
American Congress of Obstetricians and Gynecologists described numerous
fetal anomalies in an amicus brief filed in 2012 to oppose a twenty week
abortion ban in Arizona, but did not report that any fetal malformations
were known to present a threat to the fertility or life of the mother.
Perhaps this is one of the points obscured by the news reports.8 In any
case, the Swanks were sent to a Catholic
hospital for further tests.5,9
Physicians at the Catholic hospital
seem to have confirmed the diagnosis of fetal abnormalities and infant prognosis.
News reports do not state whether or not the risks to her fertility and life
were also confirmed. In any case, Ms. Swank decided that it would be best to have an abortion, since she
understood that the baby was not going to survive.9 However, the Swanks
were advised that the hospital would not provide an abortion due to Catholic
teaching against the procedure.5
"I was told to monitor my bleeding
and temperature, and come back if I bled more, or if I had my fever," Swank
said. "No one offered to help us find somewhere else to go that was not
constrained by these restrictions. No one talked to us about other options,
other than waiting to get sick enough for them to help us."10
It is not clear that Ms. Swank was bleeding when she presented at the
hospital. However, the instructions given suggest that there were signs or
symptoms of vaginal bleeding, which, in the circumstances, indicated a risk
of infection: hence, the advice to be alert for indications of infection,
like a fever. She and her husband went to a non-denominational hospital to
obtain an abortion. However, their health insurance would not cover it because the Catholic hospital would not confirm that the
abortion was "medically necessary."5
This is of particular interest
for two reasons.
First: it demonstrates that Ms. Swank did not need
the assistance of physicians at the Catholic hospital to determine that an
abortion could be obtained elsewhere, and where they could be obtained.
Second: the physicians at the non-denominational hospital were
unconstrained by Catholic teaching. The Swank's insurance would presumably
have paid for an abortion had the physicians at the non-denominational
hospital observed signs or symptoms indicating that it was "medically
necessary," whether or not information was forthcoming from the Catholic
hospital. For example, had they believed that her life or health were
immediately at risk, it seems likely that they could have proceeded with an
abortion and would have been paid by the insurance company. The fact that
the insurance company wanted certification of "medical necessity" from the
Catholic hospital indicates that doctors at the non-denominational hospital
were not satisfied that the procedure could be medically justified.
ACLU claims and news reports notwithstanding, it thus seems doubtful that
Ms. Swank was miscarrying or that her life or health were at risk. It seems
more likely that she was requesting an abortion because of fetal
malformation, evidence of which was in the records at the Catholic hospital.
Consistent with this inference, the next incident did not occur until a
few weeks later, when Ms. Swank woke up bleeding. Her husband took her to
the local hospital, another Catholic institution, where physicians again -
initially- declined to intervene. It appears that, when she presented, she
was either not bleeding, or the bleeding observed was not first thought
"Desperate to prove I was sick enough for them to treat
me, I brought to the hospital all of the pads and clothing I had bled
through," Mindy said. "The doctors decided that I was sick enough to induce
delivery. I gave birth to a baby boy who never gained consciousness and died
within a few hours."5
The fact that premature labour was induced at a
Catholic hospital is not unusual. Setting aside other situations, Catholic
physicians may prematurely induce labour during or after the threshold of
viability (between 22 and 25 weeks gestation11) if there is sufficient risk to
the life or physical health of the mother that can only be addressed by such
measures. The goal is to save and successfully treat both mother and child,
taking into account the risks faced by both and the possibility of infant
survival with appropriate neonatal intensive care.12 The fact that the baby
lived for a few hours after delivery suggests that this is what happened.
However, physicians will not necessarily induce labour after 20
weeks gestation in the absence of a threat to the life or health of the
mother.13 Physicians at neither the Catholic nor non-denominational facilties
appear to have perceived such a threat until Ms. Swank's final
hospital visit, when labour was induced.
year old Angela Valavanis had three children when she learned that she was
expecting a fourth. She and her husband decided that the fourth child would
be their last. Although she wanted a natural delivery, she planned to have
a tubal ligation if it became necessary to have a Caesarean section, since
both procedures could be done at the same time. This direction was included
in a written birth plan that she gave to her obstetrician-gynecologist, who
had cared for her for 15 years.7
During her 36-week check-up it was
found that Ms. Valavanis had lost a significant amount of amniotic fluid,
and she was sent to Presence St. Francis Hospital for an immediate
induction. However, having failed to deliver the baby after three days
labour, she was advised that she would have to have a C-section.7 At the
same time, she learned that the hospital would not allow tubal ligation.
According to the Chicago Tribune, this exchange occurred only minutes before
the delivery of a healthy baby boy.14
Ms. Valavanis and her husband
were shocked. She had previously given birth at Presence St. Francis
Hospital, but were completely unaware of the policy, which was based on
Catholic teaching against contraceptive sterilization. Had her obstetrician
made her aware of it, she would have chosen to give birth in a different
A further surprise awaited her during a post-partum
consultation with her obstetrician, who had sold her practice to a Catholic
health care company. The obstetrician told her that, as a result of
restrictions imposed by the company, she would no longer be able to
prescribe contraceptives12 - unless Ms. Valavanis was willing to lie and say
that she wanted the pill to control acne.7 Nonetheless, neither the ACLU nor
the Chicago Tribune suggest that Ms. Valavanis was unable to obtain
contraceptives or experienced any difficulty in getting them.
Valavanis and the Health Care Right of Conscience Act13
Section 4 of the HCRCA protects all Illinois health care providers from
civil and criminal liability arising from a refusal to "perform, assist,
counsel, suggest, recommend, refer or participate in any way in any
particular form of health care service" to which they object for reasons of
conscience. Thus, it was not illegal for the physician at Presence St.
Francis Hospital to refuse to provide a tubal ligation for Angela Valavanis.
Further, the HCRCA does not require health care providers to disclose
objections in advance to patients or employers, although advance
notification is generally thought to be at least good practice whenever it
is reasonably possible. While not illegal, the failure to notify Angela
Valavanis can be criticized as an oversight, bad practice, or, perhaps, a
breach of a standard of care. It exposed her to the inconvenience, cost and
risks of a second invasive surgical procedure if she wished to have her
tubes tied. It is not clear that the attending physician be blamed, unless
he became aware of her plans in the days preceding the delivery. That
responsibility lay with her obstetrician and, perhaps, the hospital
Section 6 states that the HCRCA does not relieve health care providers of
the duty to provide "emergency medical care," nor does it relieve physicians
of duties imposed by law and medical practice that require them to inform
patients of their "condition, prognosis and risks." It does not appear that
physicians failed to advise Mindy Swank of her condition, prognosis and
attendant risks, nor does it seem that she required "emergency medical
Section 6 also provides that objecting physicians are "under no duty to
perform, assist, counsel, suggest, recommend, refer or participate in any
way in any form of medical practice or health care service that is contrary
to his or her conscience," so the fact that no one at the Catholic hospital
offered to help Mindy Swank find someone to provide an abortion was neither
surprising nor illegal. However, as noted above, Ms. Swank knew that she
could seek an abortion elsewhere and knew where to go for that purpose.
appropriate question to ask in light of these cases is whether or not the
HCRCA can be amended in a way that does not defeat the purpose of the
statute, but is also responsive to the concerns of the two women.
Possible amendments responsive to the cases
With respect to the
concerns of Angela Valavanis, the HCRCA could be amended to require advance
notification of a patient whenever that is reasonably possible. Conflicts
should be avoided, especially in circumstances of elevated tension - as in
the moments before her C-section - and they often can be avoided by timely
notification of patients, erring on the side of sooner rather than later.
Notice should be given when it would be apparent to a reasonable and prudent
person that a conflict is likely to arise. In some cases - but not all -
this may be when a patient is accepted or admitted to hospital. The same
holds true for notification of patients when a physician's views change
significantly. A failure to fulfil this obligation should not mean that an
individual or health care facility should be made to provide the morally
contested service, but the HCRCA could be changed to allow civil action
against them in such circumstances.
News reports of Mindy Swank's
story are compelling because, abbreviated, one-sided and unreflective, they
portray the Catholic institutions and physicians as uncaring, saying, in
effect, "Too bad about your bleeding and pain and the baby with the
deformities. Can't do anything for you. Come back and see us when you are
really sick. Have a nice day."
However, as we have seen, the
circumstances do not support the view that Ms. Swank's situation was a
medical emergency. Further, she knew about the option of abortion (the only
option that seems to have been of interest) and where she could go for that
purpose. The advice given in the first instance to monitor her temperature
and bleeding may or may not have been prudent, and it seems consistent with
the response of physicians at the non-denominational hospital she later
attended, but, without hearing from the physicians involved, we cannot be
sure. Ultimately, labour was induced at a Catholic hospital, so the HCRCA
did not prevent her from receiving treatment, once it was clear what the
appropriate treatment was.
On the other hand, if she was seeking an
abortion because of fetal malformation, the effect of the HCRCA was to
prevent her from forcing the Catholic hospital to provide it or from forcing
it to find someone who would do so, which is clearly one of the central
purposes of the law.
The only element in Ms. Swank's case that might
be addressed by an amendment to the HCRCA is the transmission of patient
records from one institution to another. Ms. Swank was legally entitled to
obtain copies of her medical records held by the Catholic hospital or to
have them delivered to another institution. However, the law requires that
the request for records be made in writing and gives an institution thirty
days to respond, so it is not a suitable process in situations in which
prompt access is desired.14 More important, Section 14 of the HCRCA
overrides the records access law in cases of conscientious objection, and
it is likely that the Catholic hospital relied on this when it refused to
provide information to physicians at the other institution.
effectively allows an institution or health care provider to unilaterally
assume the exclusive control of patient medical information, to the point of
denying the patient access to or control of it. This is the kind of power
that police have over information they hold about criminals; it is markedly
inconsistent with the kind of relationship that one expects to exist between
patients and physicians, other health care providers and holders of their
Without going further into the matter, this suggests that, with respect to
patient access to medical records, the HCRCA seems to go beyond what the law
might prudently allow in protecting individual and institutional freedom of
conscience. Relevant here is the fact that, in jurisdictions where
euthanasia and/or assisted suicide are legal, objecting physicians are not
legally obliged to help patients find someone willing to kill them, but they
are obliged to transfer records to the patient or another physician
identified by the patient under customary records transfer protocols.17
In sum, then, the cases of Ms. Swank and Ms. Valavanis
be cited to justify two amendments to the HCRCA: one, to require advance
notification of patients when reasonably possible, and the other, to require
the expeditious transfer of medical records when requested by a patient.
Such amendments would address their concerns, and would have little or no
impact on the central purpose of the law.
SB 1564 as introduced
Senator Biss explained that he introduced SB 1564 to ensure freedom of
conscience and religion for health care workers, while also ensuring "the
patient's right to have information as well as access to care."14 Consistent
with this, the bill reiterated the current law's recognition of freedom of
conscience for health care workers and institutions, adding that it was also
the public policy of Illinois "to ensure that patients receive timely access
to material information and medically appropriate care."18
this goal, the original version of the bill disallowed refusal to provide or
facilitate procedures for reasons of conscience except when it occurred in
conformity with "written access to care and information protocols." The
original bill specified that the protocols must be designed to ensure that
patients receive "material information in a timely fashion" and that the
refusal would "not impair" their health "by causing delay of or inability to
access the refused health care service."17
"Material information" was
defined to include "all information, pertinent to patient health care
decision making and consistent with accepted standards of medical practice,"
including "prognosis, relevant treatment options, and the risks and benefits
of such treatment options,"18 but also:
(2) a written document that
contains the names of and contact information for health care facilities,
physicians, or health care personnel that can provide the patient the
particular form of health care service refused because of a conscience-based
objection to the health care service, unless the patient has been referred
or transferred to a health care facility, physician, or other health care
personnel that can provide him or her with the refused health care service.19
Incidentally, the bill struck out a provision in the HCRCA that
prevents discriminatory screening of applicants.20
Finally, the bill
effectively made those in charge of hospitals, clinics, physician offices,
etc. responsible for enforcing the provisions of the Act by authorizing them
to compel physicians and health care personnel to "comply with access to
care and information protocols," regardless of their conscientious
Did the original text of SB 1564 propose amendments
responsive to the concerns raised by Mindy Swank and Angela Valavanis, while
maintaining the purpose of the statute?
In the first place, some
elements of SB 1564 seem reasonable. Insisting upon written protocols at
least helps to ensure that individuals and institutions have thoughtfully
consider how to address difficulties that might arise in contentious
situations. Similarly, requiring that patients be provided with relevant
information "in a timely fashion" should prevent the kind of problem faced
by Angela Valavanis.
However, the bill did not include the only
change that would have been relevant to the case of Mindy Swank - ensuring
the transfer of patient medical records. Moreover, it is obvious that the
the original version of SB 1564 proposed changes that went far beyond what
could be justified by the evidence of Ms. Swank and Ms. Valavanis. Indeed,
SB 1564 went so far as to effectively nullify the statute. The demand that
objectors must direct patients to someone who will provide a service that
they find morally objectionable - even abhorrent - is unacceptable to many
health care workers because they believe that doing so makes them morally
complicit in the act.
Canadian physicians are becoming acutely aware
of this issue because physician assisted suicide and euthanasia will be
legal in Canada early next year, and euthanasia activists have been
demanding for some time that physicians unwilling to kill patients should be
forced to help patients find a colleague who will."22 Their reasoning is
precisely the same as that of Senator Biss and his supporters: that,
notwithstanding one's moral or religious beliefs, one must provide or at
least facilitate "timely access to medically appropriate care" - even if
that means killing someone.
On this point, Illinois health care
workers and legislators would do well to consider the position of the
American Medical Association (AMA), which will be publicly incorporated into
its policies next month.23 In a submission to the state regulator of medical
practice in the province of Ontario, the AMA described its approach to the
exercise of freedom of conscience by physicians, beginning with the
obligation to provide information relevant to "health care decision making":
In the Council's view, an account of the nature and scope of a
physician's duty to inform or to refer when a patient seeks treatment that
is in tension with the physician's deeply held personal beliefs must address
in a nuanced way the question of moral complicity. The Council concurs that
physicians must provide information a patient needs to make a
well-considered decision about care, including informing the patient about
options the physician sincerely believes are morally objectionable. However,
the Council sought to clarify that requirement, holding that before
initiating a patient-physician relationship the physician should "make clear
any specific interventions or services the physician cannot in good
conscience provide because they are contrary to the physician's deeply held
personal beliefs, focusing on interventions or services that a patient might
otherwise reasonably expect the practice to offer."
submission also responded to the regulator's proposal to force physicians "unwilling to provide certain elements of care on moral or religious
grounds," to make "an effective referral"- that is, to direct patients to "a
nonobjecting, available, and accessible physician or other health care
provider." This is exactly what was proposed in the original text of SB
The AMA stated:
This seems to us to overstate a duty to refer,
risk making the physician morally complicit in violation of deeply held
personal beliefs, and falls short of according appropriate respect to the
physician as a moral agent. On our view, a somewhat less stringent
formulation of a duty to refer better serves the goals of non-abandonment,
continuity of care, and respect for physicians' moral agency. The council
In general, physicians should refer a patient to
another physician or institution to provide treatment the physician declines
to offer. When a deeply held, well-considered personal belief leads a
physician also to decline to refer, the physician should offer impartial
guidance to patients about how to inform themselves regarding access to
On the Council's analysis, the degree or depth of
moral complicity is defined in part by ones "'moral distance' from the
wrongdoer or the act, including the degree to which one shares the wrongful
Other factors also influence complicity, including
"the severity of the immoral act, whether one was under duress in
participating in the immoral act, the likelihood that one's conduct will
induce others to act immorally, and the extent to which one's participation
is needed to facilitate the wrongdoing."24
Opposition by Catholic authorities
Despite the overreaching nature of the bill, the Senate Judiciary
Committee approved SB 1564 by a 7-3 margin (2 abstentions), largely along
party lines.25 When the bill moved to the Senate floor, the Catholic
[Bishops'] Conference of Illinois and the Illinois Catholic Health
Association redoubled their opposition, because, they said, it "essentially
obliterates" the Health Care Right of Conscience Act.
legislation states that when conscience rights are invoked, patients must
receive written information that includes a referral to "health care
facilities, physicians, or health care personnel that can provide the
patient the particular form of health care service."
could constitute a direct cooperation with the morally objectionable
services, resulting in a violation of conscience.26
within the context of Catholic teaching, their opposition to the bill was
based on the same concern about complicity that informs the approach of the
American Medical Association.
the bill would pass in the Senate, the Conference and Association employed
Catholic health care ethicists and Catholic hospital lawyers to negotiate
with Senator Biss to correct the problems they had identified. The Senator
agreed to amendments that were acceptable to the Conference and Association,
which then dropped their opposition to the bill and adopted a neutral
position concerning it.27
According to the Catholic Conference of
Illinois and the state's Catholic Health Association, the amended bill
reflects "current medical practices in Catholic hospitals."29 Those
practices were discussed with the Chicago Tribune by Patrick Cacchone,
executive director of the Illinois Catholic Hospital Association, and Erica
Laethem, regional director of ethics for one of the state's largest health
care organizations, OSF Health Care, a Catholic entity.
said that patients are supposed to be advised of all options, even those not
available in Catholic hospitals:
We put them in the right direction
to get the care they need. If we didn't operate this way, it would be
malpractice and we wouldn't be in business. That's our protocol - fully
Erica Laethem agreed.
We really do
believe that there's no topic about which a provider would be advised to say
to a patient, "I can't even discuss this with you." The patient-provider
relationship is a relationship based on trust, and that requires dialogue.14
Ms. Laethem explained that Catholic health care providers can do
everything but formally refer for a procedure, suggesting that they can
provide "information about providers who have a certain specialty who could
perform an independent consultation and continue the conversation with the
If Ms. Laethem meant that such information could include
contact information for those who provide abortion or other procedures
prohibited by Catholic teaching, her explanation goes beyond what is
acceptable to the Catholic Conference of Illinois. The following note
appears in capitalized bold type in its statement about SB 1564:
PLEASE NOTE THAT THE AMENDED SB 1564 REQUIRES NO ONE TO TELL PEOPLE WHERE
ABORTIONS CAN BE OBTAINED.29
SB 1564 as amended
passed the Senate on 30 April, 2015 and is now before the state House of
Representatives. The text of the bill has been posted on the Project website
in parallel with the corresponding provisions of the existing HCRCA at
Illinois: Senate Bill 1564 (2015) so that the changes can be easily
Section 4 of the HCRCA (discussed above) is unchanged.
Also unchanged is the critical provision in Section 6 that states that an
obligation to provide information cannot be construed to impose a "duty to
perform, assist, counsel, suggest, recommend, refer or participate in any
way" in procedures to which one objects for reasons of conscience. However,
as will be seen presently, the protection against coerced referral or
participation is qualified by Section 6.1.
SB 1564 adds to Section 6
a duty to inform patients of "legal treatment options." It also adds a
requirement that physicians disclose not only the risks of treatment options
(as required by the current law), but their benefits, a provision retained
from the original bill.
Section 6.1, an entirely new section, appears
to be the principal product of the negotiations that led to the amendments
accepted by Senator Biss. SB 1564 no longer demands that objectors provide
patients with timely written notice of the names and contact information of
facilities or personnel who would provide morally contested procedures.
Further, the requirement that conscientious objection not cause "inability
to access the refused health care service" has been dropped.
the exercise of freedom of conscience will not be allowed unless an
individual or institution has written policies to ensure that conscientious
objection does not "cause impairment of patient's health," and that explain
how conscientious objections will be managed "in a timely manner to
facilitate patient health care services."
At a minimum, when a
service is refused for reason of conscience, four requirements must be met.
1) All information relevant to informed decision-making (diagnosis,
prognosis, treatment options, risks, benefits) must be given to the patient;
2) Someone else in the facility must provide the morally contested
procedure, or the patient must be told that it will not be provided.
3) If a procedure will not be provided, upon request of the patient or his
legal representative, an objecting health care worker or facility must do
one of three things:
i) refer the patient to other health care
providers who they reasonably believe may provide the morally contested
ii) transfer the patient to other health care providers who
they reasonably believe may provide the morally contested service; or
iii) provide the patient with written information about other health care
providers who the objecting facility or individual reasonably believes may
offer the morally contested service.
4) Upon the request of the
patient or his legal representative, provide copies of medical records to
the patient or to another health care professional or health care facility
designated by the patient, without undue delay."Undue delay" is defined to
mean "unreasonable delay that causes impairment of the patient's health."
The fourth requirement addresses the failure of the original bill to
provide for the transfer of records.
The amended bill retains the
provision in the original that permits facilities to force health care
workers to comply with these requirements, regardless of their conscientious
Even as amended, SB 1564 goes well
beyond what might be justified by the cases of Mindy Swank and Angela
Valavanis, but it was acceptable to the Catholic Conference of Illinois and
others responsible for delivering health care in Catholic institutions.
Nonetheless, its passage was denounced by the Board of Directors of Catholic
Citizens of Illinois (CCI) as "an act of insufferable arrogance."
[A]mendments can't cure the problem. The bill is intended to require
Catholic "medical personnel" to act against their religious convictions, and
thus an inexcusable and unacceptable attempt to coerce consciences.32
Catholic Citizens of Illinois describes itself as an organization that works
"for a restoration of traditional Catholic values to the public life of
Illinois. . . from a perspective formed in strict fidelity to the
Magisterium and in loyalty to the bishops and the Holy Father."33
Notwithstanding its affirmation of "loyalty to the bishops," CCI seems to
have been referring to the declaration of neutrality by the Catholic
Conference when, in relation to SB 1564, it stated, "for Catholics,
'neutrality' in the face of an intrinsic evil is never an option."32
A few days later, CCI was joined in its opposition to SB 1564 by the
Illinois Women's Health and Life Alliance, a coalition of 30 organizations
and individuals, including the president of the Chicago guild of the
Catholic Medical Association. Among its criticisms, the Alliance claimed
that SB 1564 "would require doctors to facilitate abortions for any reason,
and at any stage of pregnancy, despite their conscientious and professional
objections," and "would require pregnancy center workers to violate their
core mission by referring women for abortions or distributing information on
where to obtain abortions."34
Responding to a
Chicago Tribune Op-Ed
supporting the bill, Anna Paprocki, staff counsel for Americans United for
Life (a member of the Alliance) wrote that SB 1564 "creates new obligations
for healthcare providers . . . to promote and participate in
conscience-violating activities" and "promotes the coercive anti-conscience
agenda of his abortion-industry backers, Planned Parenthood and the ACLU."35
Professor Robert P. George of Princeton University added his voice to
the opposition in the form of an open letter to Illinois legislators, urging
them to "vote down a bill that would trample on citizen conscience rights."36
Complicity: when is referral not referral?
While not the only point of contention, the issue of complicity is
central to the controversy about the SB 1564 and the differences that have
arisen between the Catholic bishops' conference and Catholic health care
entities on the one hand and pro-life and Catholic individuals and
organizations on the other.
In a legal analysis of SB 1564, Anna Paprocki noted that the current law
"respects a healthcare provider's conscientious determination of what
constitutes his or her complicity" in wrongdoing.37
The provider - not
the state - determines whether or not giving a patient contact information
for someone willing to provide a contested service is a violation of the his
conscientious convictions, and the provider - not the state - determines
what constitutes an acceptable compromise.
The text of SB 1564, like any law, is subject to interpretation. The
Catholic Conference, acting on the advice of ethicists and lawyers, appears
to have withdrawn its opposition because it seemed to the bishops that a
"friendly" interpretation of the text was possible, one consistent with
current practice in Catholic health care. Of the three options provided in
the bill, it would seem that neither institutionally initiated referral nor
institutionally initiated transfer would be possible for a Catholic
institution. However, they understood the third option - referral - to
include an acceptable alternative:
Counsel against the objectionable service, tell the
patient what the problems are with it, but if the patient continues to
insist on it, to say, 'Look, we don't do that here; here is a list of
medical providers: Maybe one of them can help you.'"
Zachary Wichmann, the Conference's director of governmental relations,
said, "That, in our minds, is not a morally objectionable referral."38
For example: an objecting individual or institution might provide a
generic list of all physicians or health care facilities within a five mile
radius, information that is already publicly available. That would be
similar to directing a patient to the Yellow Pages, albeit in a more
convenient form. It would not direct a patient to a specific institution or
individual known to provide the morally contested procedure. Certainly, this
interpretation is consistent with the Conference's statement that SB 1564
"requires no one to tell people where abortions can be obtained."
However, one wonders if that is what was understood by Senator Biss when
he agreed to the amendment, or if a court considering the actual text of the
law would agree. The revised wording of SB 1564 does not readily yield that
interpretation. An objector is required to provide information, not about
all reasonably accessible health care providers whom a patient might
approach, but about other health care providers who the objecting facility
or individual reasonably believes may offer the morally contested service.
This hardly sounds like a generic list that might be copied from a
telephone book or health care directory.
Professor George made this point in his open letter to Illinois
legislators. Referring to abortion, the kind of list required by SB 1564, he
said, is a list "composed solely of those of whom it is 'reasonable' to
believe would perform the abortion."
(If one has no reason to believe a facility performs
abortions, it would not be "reasonable" to put it on the list. Similarly, if
one knows a facility does not perform abortions, it would not be reasonable
to put it on the list.)39
On the other hand, the Catholic Conference perhaps saw that, strictly
speaking, other interpretations are possible, and agreed to settle to avoid the less certain outcome of
a pitched political battle.
Nonetheless, it seems that a pitched political battle is on the horizon,
with those supporting freedom of conscience in health care apparently more
divided than those who wish to suppress it.
1. Murphy, S.
"Illinois HB2354 to nullify
Health Care Right of Conscience Act: Illinois, USA (2009-2010)." Protection of Conscience Project.
"Illinois Women's Health and Life Alliance Urges House Defeat
of SB 1564: Bill Violates Rights of Doctors, Women and Creates Legal
Liabilities." Illinois Women's Health and Life
Alliance news release, 4 May, 2015 (Accessed 2015-05-07).
3. Smith PJ,
"In Illinois, Bishops and Pro-Life Groups Differ on ACLU Conscience Bill."
National Catholic Register, 13 May, 2015 (Accessed 2015-05-13).
"Senate Oks measure requiring doctors to provide information even about
objectionable treatment." The Associated Press, 22 April,
2015 (Accessed 2015-05-11).
5. Yeagle, P.
"Morals in medicine:
Senate passes "right of conscience" bill after harrowing
testimony." Illinois Times, 30 April, 2015
6. It is unlikely that they could have testified even if invited by
the Committee because of constraints imposed by patient confidentiality.
At the very least, Ms. Swank would have had to waive patient privilege to
allow them to respond to her allegations.
"Why We Need Senate Bill 1564: Angela & Stel's Story."
American Civil Liberties Union of Illinois,
21 April, 2015 (Accessed 2015-05-03).
8. No. 12-16670, In the United States Court of
Appeals for the Ninth Circuit, Paul A. Isaacson, M.D, et al.,
Plaintiffs-Appellants, v. Tom Horne, Attorney General of Arizona, in his
official capacity, et al., Defendants-Appellees. On Appeal from the United
States District Court for the District of Arizona, Civil Case No.
2:12-cv-01501-JAT (Hon. James A. Teilborg)
Brief for Amici Curiae American College of Obstetricians and Gynecologists
and American Congress of Obstetricians and Gynecologists in Support of
Plaintiffs-Appellants and Reversal (Accessed 2015-05-20).
9. Gibbs, K.
"Proposal seeks to ensure patient care & personal beliefs."
WCIA News, 17 March, 2015 (Accessed 2015-05-11).
10. Gregory, J.
"Opposition Mounting Against 'Right of Conscience' Act." Alton Daily News,
WBGZ Radio, 7 May, 2015 (Accessed 2015-05-07).
11. In the developed world. Synnes AR, Buchanan
L, Ruth C, Albersheim S.
"Management of the newborn delivered at the threshold of viability."
BCMJ, Vol. 50, No. 9, November 2008, page(s) 498-508 (Accessed
12. U.S. Conference of Catholic Bishops,
Ethical and Religious Directives for Catholic Health Care Services
(5th Ed.) 17 November, 2009, No. 49 (Accessed 2015-05-13). Note that
an evaluation of the neonate following birth may lead to the conclusion that
palliative care rather than neonatal intensive care is more appropriate in
13. World Health Organization,
for the Induction of Labour (2011)
14. Pashman, MB.
"Bill would make Catholic hospitals tell patients about options elsewhere."
Chicago Tribune, 17 April, 2015 (Accessed 2015-05-12)
745 ILCS 70/1 Health Care Right of Conscience Act. (Hereinafter
16. Illinois Compiled Statutes, Chapter 735,
Code of Civil Procedure,
Article VIII, Part 20, Sections 8-2001 through 8-2003 (Accessed
17. For example: The Belgian Act on
Euthanasia (2002) Chapter VI:
Provisions, Section 14.
18. 99th General Assembly, State of Illinois,
2015 and 2016,
SB1564. Introduced 2/20/2015, by Sen. Daniel Biss, Section 2
(Hereinafter "Original SB 1564) (Accessed 2015-05-15).
19. Original SB 1564, Section 6.1
20. Original SB 1564, Section 3(h)1
21. Original SB 1564, Section 3(h)2
HCRCA Section 7: Discrimination. The Orginal SB 1564 struck out "to
place any reference in its application form concerning, to orally question
23. Original SB 1564, Section 6.2.
24. Schuklenk U, van Delden J.J.M, Downie J,
McLean S, Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life
Decision Making (November, 2011) p. 62, 69, 101 (Accessed
25. In November, 2014, the AMA House of
Delegates adopted a new policy concerning
physician exercise of freedom
of conscience, which will be formally issued in June. The
states, "Reports not available online (such as those recently adopted by the
AMA and pending publication) are made available upon request by contacting
staff." American Medical Association,
26. Quoted in Murphy, S.
Association provides details of new freedom of conscience policy: AMA
submission to Ontario College of Physicians an improvement on quality of
briefing by College working group." Protection of Conscience Project,
21 February, 2015.
27. State of Illinois, 99th
General Assembly Senate Committee Vote, Judiciary, Senate Bill No. 1564, 17
March, 2015 (Accessed 2015-05-16).
"Conscience rights under attack." Catholic Conference of Illinois,
6 March, 2015 (Accessed 2015-05-11).
"Agreement reached on conscience rights." Catholic Conference of
Illinois, 16 April, 2015. (Accessed 2015-05-03).
30. Proposed Law- "Illinois:
Senate Bill 1564 (2015)" Protection of Conscience Project.
31. SB 1564, Section 6.2
"Statement of Catholic Citizens of Illinois on SB#1564, Health
Care Right of Conscience Act." 30 April, 2015.
33. Catholic Citizens of Illinois:
About Us. Who are the
Catholic Citizens at CCI? (Accessed 2015-05-12).
34. "llinois Women's Health and Life Alliance Urges House Defeat of SB 1564: Bill Violates Rights of Doctors, Women and Creates Legal
Liabilities." llinois Women's Health and Life Alliance
news release, 4 May, 2015 (Accessed 2015-05-07).
35. Paprocki, A.
"Tribune Op/Ed Misleads on Healthcare Right of Conscience." Illinois
Family Institute, 20 April, 2015 (Accessed 2015-05-12).
36. George RP.
"An Open Letter to the Illinois Legislature."National Review,
12 May, 2015 (Accessed 2015-05-13).
37. Paprocki A.,
"Analysis of Illinois SB 1564 - Detrimental to Both Healthcare Providers and
Patients." Americans United for Life (Accessed 2015-05-18).
38. Smith PJ.
"In Illinois, Bishops and Pro-Life Groups Differ on ACLU Conscience Bill."
National Catholic Register, 13 May, 2015 (Accessed 2015-05-13).
39. George RP.
"An Open Letter to the Illinois Legislature." National Review, 12
May, 2015 (Accessed 2015-05-13).