The National Review
25 September, 2002
Reproduced with permission
Katherine Jean Lopez
It’s still legal to oppose abortion, isn’t it?
You might think that any piece of legislation with the word “non-discrimination” in it is just about automatically headed for easy congressional passage. What politician wants to be on record as being in favor of discrimination?
Well, it’s just not so. At least if the issues involved are religion and abortion.
The House of Representatives is set to take up the (ANDA) this week. The goal of the bill is to protect Americans’ right to not have to pay for or otherwise participate in abortions. Specifically, ANDA seeks to protect religious hospitals and other health-care providers (clinics, insurers, nurses, doctors) who are opposed, in conscience, to abortion, from having to have anything to do with them.
This has been one of the hottest “reproductive rights” issues over the last few years. Very few statehouses haven’t seen coercive bills seeking to force religious – often Catholic-hospitals to provide the whole gamut of so-called “reproductive health” services, including abortion, all in the name of “access.” Currently 49 states (the exception is Vermont) have some kind of conscience protection for health-care providers, though none of them are as comprehensive as the proposed ANDA bill-which covers all health-care “entities.”
In this regard, one of the favorite topics among abortion advocates recently has been hospital mergers. Planned Parenthood argues, in an action alert send out to supporters this week, that health-care institutions, whatever their affiliation, “operate in a secular sphere, and employ and serve people of diverse backgrounds and faiths. Thus, their claimed right to refuse to provide these services imposes serious burdens on people who do not share their religious views.”
The ANDA bill, says PP, “would allow the ‘conscience’ of the entity to trump the ‘conscience’ and needs of the women they serve. . . . This is wrong.”
What is not wrong, however, in Planned Parenthood’s estimation, is “the entity” – i.e. actual private organizations and Americans – being forced by law to provide services that the people who make up the organizations believe to be morally prohibited. In fact, these hospitals often believe the very essence of their work is founded on an opposition to the taking of a human life. It’s a principle that all of medicine – whether the practitioners were religious, agnostic, or atheist – once considered at its very core.
Even a nonsectarian hospital can get in legal trouble under the current regime. In Alaska, Valley Hospital’s (elected) board decided that it did not want to continue letting a community OB/GYN use hospital facilities to perform abortions. The board’s decision meant that abortion was no longer available at the hospital except in cases of “rape, incest, and danger to the life of the mother – exactly the same policy the federal government has had in Medicaid and its other health programs for many years,” as board member Karen Vosburgh told the House Energy and Commerce committee this summer.
As Vosburgh told the committee, an Alaska court’s subsequent decision (upheld by the state supreme court) to prohibit Valley Hospital from making such a decision “potentially places all hospitals in our state in a ‘Catch-22’ situation. If you are a non-religious hospital you have no First Amendment claim of religious freedom, so you must provide abortions. If you are a religious hospital with a ‘free exercise’ claim, respect for your right of conscience may be seen as showing favoritism to religion, so you may still have to provide abortions.”
It’s just not Planned Parenthood and the overt abortion-advocacy groups actively opposing ANDA. The American Civil Liberties Union’s Reproductive Freedom Project sent a representative to the Hill earlier in the summer to argue that the bill would unfairly restrict women from abortion, contraception, and even simple counseling.
The groups lobbying against ANDA have grabbed the talking points from their anti-abortion folder without focusing on the actual legislation they are so enthusiastically opposing. In fact, if this were not the narrow clarification that ANDA is, pro-lifers would likely be debating amongst themselves, some saying that the bill does not go far enough into specifics, into the realm of abortifacient so-called contraception, for instance. But these are battles for another day-having nothing to do with this piece of legislation.
Simply put, this isn’t a bill about abortion politics. It’s a bill about freedom. What abortion advocates have been arguing when it comes to “access” is that they would see rather a hospital merger not go through-and a hospital potentially shut down – than allow a hospital to choose not to participate in what its employees and founders believe to be murder of a human life. For them, this is not about freedom. Their opposition to ANDA is a backdoor way to oppose any restrictions on women getting abortions whenever, wherever. As Brigham Young University Law School professor Lynn Wardle has put it, “zealous abortion activists continue to try to use the powers of government to compel participation in and payment for and coverage of abortion. Specifically, they try to compel hospitals, clinics, provider groups, and health-care insurers to provide facilities for, personnel for, and funding for abortion.”
In fact, despite the scare stories from those opposed to ANDA, federally funded abortions would still be possible under ANDA. Nor is this a bill that seeks to reverse Roe v. Wade, the Supreme Court ruling that okayed abortion. As a fact sheet put out by the Catholic Bishops’ pro-life department notes, “States can ensure access to any abortions they fund without forcing specific providers against their will to provide these particular abortions. A requirement that a state will contract only with a provider that offers absolutely every reimbursable service would be an enormous barrier to patients’ access to care, as few providers in any state could meet such a test.”
The case for the Abortion Non-Discrimination Act is a simple one, despite the heated rhetoric. As Pennsylvania congressman Joe Pitts put it at a hearing in July, “Abortion is an elective surgery. It is not prenatal care. It is not basic health care, as some of our friends would like us to believe. Private hospitals should be able to decide what types of elective surgery they wish to offer. If they don’t want to provide abortions, they shouldn’t have to.”
That simplicity might give the bill a decent shot at passage. Tough sells on pro-life issues, like Republicans Tom Davis and Fred Upton, are cosponsoring ANDA. And some leading pro-life members – along with the Catholic bishops, an important voice on this issue in particular, given that there are over 600 Catholic hospitals in the U.S. (never mind other Catholic health-care entities) – are willing to push for this as a top priority for passage before the end of the year (likely as part of a lame-duck session, after the election). Rep. Pitts tells NRO: “I think there will be overwhelming support for the bill when it comes up for a vote.” In fact, as Pitts points out, even President Clinton signed a less comprehensive conscience-clause bill in1996. Cases like the Alaska one, however, make the need for ANDA clear.
In fact, for some members, ANDA is not at all different from what they voted for in 1996. Senator Olympia Snowe said on the Senate floor in 1996: “[The amendment] does protect those institutions and those individuals who do not want to get involved in the performance or training of abortion when it is contrary to their beliefs . . . I do not think anyone would disagree with the fact – and I am pro-choice on this matter, but I do not think anybody would disagree with the fact that an institution or an individual who does not want to perform an abortion should do so contrary to their beliefs.”
She didn’t foresee how courts would interpret the law: as not including hospitals, because they are “quasi-public” entities. Of course, prospects in the Senate – as is so often the case – are murkier than in the House.
As Lynn Wardle noted in his testimony this summer, ANDA “is a very small, but very important, step in the right direction.” Wardle tells NRO, “The basic issue in the Abortion Non-Discrimination Act is forced abortion. A forced abortion occurs not only when a woman is forced to have an abortion she does not want, but also when a health-care provider is forced to provide or participate in an abortion against her will. Even the Supreme Court abortion cases are based on protecting voluntary choice. The right of individuals and organizations of individuals to choose in accord with their conscience to not have and to not participate in abortion must be protected against extremists who are trying to coerce others to provide abortion services that extremists want but which others find morally repugnant. That is what ANDA is about. It protects freedom of choice, the freedom not to be forced to perform or support abortion against one’s moral beliefs.”
But then, for some, there are issues much more important than choice and non-discrimination: like making sure abortion is anything but rare. That’s why National Organization for Women calls ANDA “one of the most harmful bills yet proposed.”