A Matter of Conscience

Obama weakens protections for medical professionals opposed to abortion.

Weekly Standard, 27 April, 2009
Reproduced with permission

Marilyn Musgrave* & Marjorie Dannenfelser*

When it came to choosing the head of the Justice Department's Office of Legal Counsel, an obscure but important officer in charge of defining each administration's official stance with regard to the Constitution and federal law, the president nominated not simply a supporter of Roe but former NARAL counsel Dawn Johnsen. She believes that pregnancy is the moral equivalent of slavery, and that therefore the anti-slavery 13th Amendment to the Constitution protects abortion on demand. Johnsen made this argument in her best-known legal brief, to the Supreme Court in Webster v. Reproductive Services. Given these views and assuming her confirmation, she will presumably devote roughly the same amount of time to finding common ground with pro-lifers as she will to finding common ground with backers of a restoration of slavery.

When it comes to the Freedom of Choice Act (FOCA), a radical piece of legislation that would codify Roe and repeal most pro-life laws on the books, the president appears to be adopting a strategy that avoids demanding enactment of FOCA as a package, but breaks it up into its separate parts and passes or promulgates each one with a minimum of fuss. In deference to those who find it hard to believe he really supports all of FOCA, we are waiting for his repudiation of even one provision of it, such as its implied mandatory repeal of the Hyde Amendment that denies federal taxpayer money for domestic abortions. So far, this hasn't happened, which is consistent with the fact that a statement of Obama's unequivocal support of FOCA remains posted on the White House website.

Now that the mandatory 30-day comment period has expired for the administration's proposed revocation of President Bush's executive order locking in "conscience provisions" protecting (among others) medical personnel from being forced to participate in abortion services, President Obama has still another opportunity to locate a bit of that elusive "common ground." But no one on either side of this fight believes there is the slightest chance he will choose to do so.

More than a few press accounts have treated the Bush administration's set of conscience provisions as if it were one of those curve balls often thrown at the end of lame-duck administrations, unfairly handcuffing or putting a nakedly political burden of proof on a new president.

This narrative is very far from the reality. The conscience regulations are rooted in federal law and congressional intent. The administration, acting mainly through the Department of Health and Human Services, concluded that federal and state bureaucrats, as well as health-care and medical elites, were ignoring numerous conscience provisions that Congress had intended to be taken seriously.

Did Congress ever intend to force doctors to recommend procedures (if not actually perform them) that go against their consciences? Did Congress ever intend to condone the firing of a nurse who reported the starvation of babies born alive during induced labor abortions? Did Congress intend to force Catholic hospitals and personnel morally opposed to abortion to provide or refer for abortions without exception? The administration will find all these examples, and many more, as it reviews affidavits submitted during the recently concluded mandatory 30-day public comment period.

Even more ominously, how likely is it that an administration which fails to define these and similar outrages as unacceptable will fail to include abortion services in its upcoming proposal for national health care reform? If the administration follows through on its openly stated option of making health care reform part of a budget package requiring the vote of only 50 senators under "reconciliation," medical professionals with deeply held moral beliefs across the country will stand to suffer.

Many doctors, nurses, and other healthcare workers will confront the dilemma of choosing between their conscience and their call to serve fellow citizens in our nation's hospitals and clinics. They will be forced to either violate their conscience and keep their jobs, or respect their beliefs and pay the price by leaving their careers.

A recent poll commissioned by the Christian Medical Association (CMA) found the impact on our health care system will be dramatic. When asked how rescission of the conscience rule would affect them personally, 82 percent of CMA members polled said it was either "very" or "somewhat" likely that they personally would limit the scope of their practice of medicine to respect their deeply held beliefs. But this reality will hardly matter if the debate is never seriously joined by the pro-life leaders in Congress.

As we approach the announcement of yet another failure to locate that "common ground" on abortion, it is puzzling that more pro-life leaders in Congress and on the national stage have refused to stand up and fight for the right of conscience.

Many Americans may have been hopeful that President Obama would actively "reach out" to pro-lifers, but his agenda to date has been far, far away from anything remotely resembling "common ground" on the abortion issue. It's time that pro-life members of Congress on both sides of the aisle step up to challenge the president, and advocate for real common ground policy--one that respects the right of conscience for our doctors, nurses, and medical providers.