We Don't Need New Laws
Originally appeared 16 Janaury, 2013
Public Discourse: Ethics, Law, and the Common Good
Online journal of the Witherspoon
Institute of Princeton, NJ
Reproduced with permission.
A recent argument that abortion providers deserve the same legal
protection as pro-life medical providers is philosophically flawed and
ignores legal and popular consensus on the evil of abortion.
If we legally protect a "right of conscience" to refuse to assist or
perform abortions, shouldn't we also protect "conscience-based" decisions to
provide abortions? So asks Dr. Lisa Harris of the University of
Michigan, in a recent
in the New England Journal of Medicine (further publicized at a
Harris complains that she and other abortion practitioners work under a
"stigma," are "marginalized" in medicine, are seen as motivated by politics,
and are even threatened with physical harm. She wants law and society to
recognize that she and her colleagues are just as "conscientious" as doctors
and nurses who reject abortion.
Her argument is superficially plausible-aren't conscience laws designed
to protect precisely those people whose moral choices might be
unpopular?-but it is deeply flawed. Exploring those flaws highlights
important but underappreciated aspects of the abortion and "conscience"
Harris's criticism of existing law begins with what she calls "the first
conscience legislation," the Church amendment enacted by Congress in 1973
(named for its Senate sponsor, Democrat Frank Church of Idaho). But in fact,
several clauses of the Church amendment do protect both "willingness" and
"unwillingness" to be involved in abortions.
Harris acknowledges this, but still complains that the amendment "does
not recognize that moral convictions might drive such [abortion] care." Yet
the amendment forbids discrimination against medical school applicants
because of "the applicant's reluctance, or willingness, to counsel,
suggest, recommend, assist, or in any way participate in the performance of
abortions or sterilizations contrary to or consistent with the
applicant's religious beliefs or moral convictions" (emphasis added).
How does this prescription fail to meet her test?
We'll return to that question. But let us concede that most other
conscience laws, at the state and federal level, speak only of a
conscience right not to assist or perform abortions (and sometimes
other procedures such as sterilization). Why haven't Dr. Harris's allies in
Congress also fought over the last four decades to make these laws
Conscience laws have been needed since 1973
precisely because this new "right" of abortion seemed so absolute, so
sweeping, that its proponents insisted it should be enforced as a kind of
entitlement: When a woman wants an abortion, doctors and hospitals that
disagree must abandon their own consciences and serve her wish.
The most obvious answer is that they have seen no need to do so, because,
as our highest court proclaimed in 1973, those who want to perform
abortions already have the freedom to act as they wish
. The Supreme
Court's ruling in Roe
, reaffirmed in cases such as
(1992), has barred government
at any level from prohibiting (or as Casey
says, imposing an "undue
burden" on) a woman's decision to have an abortion, or a doctor's decision
to perform that abortion, at any time up to fetal viability. Even after
viability, the doctor must be free to decide that an abortion is needed for
the woman's "health" (defined to include all factors-including physical,
emotional, psychological, familial, and the woman's age-relevant to her
"well-being"), and act accordingly.
Conscience laws have been needed since 1973 precisely because this new
"right" of abortion seemed so absolute, so sweeping, that its proponents
insisted it should be enforced as a kind of entitlement: When a woman wants
an abortion, doctors and hospitals that disagree must abandon their own
consciences and serve her wish. Congress and the vast majority of states
responded to this claim, in the years following Roe, to affirm that
the law's protection of the woman's decision does not deprive everyone else
of their rights.
Moreover, what abortion proponents achieved was a legal right to choose
abortion regardless of one's reasons. Under Roe the
government has no right even to ask whether an abortion is being performed
for what the participant sees as "moral or religious" reasons. So when
Harris asks why conscience laws don't authorize abortions performed for
"moral or religious" reasons, the answer is: Because the law already
protects abortions performed for any reason. Unlike those who want to
provide abortions, those who abhor abortion must often cite a specific moral
or religious conviction.
Yet Harris is still dissatisfied and wants more. To be blunt, she wants
approval. She believes the rest of us should publicly affirm, once and for
all, that abortions are performed for objectively good, morally upright
reasons. She thinks the law should acknowledge that she is acting on a
well-formed or upright conscience-or at least should require
others to act as though they believe this, by providing abortion
practitioners the assistance, use of facilities, and other forms of support
they would ordinarily provide for well-accepted medical procedures that they
just don't happen to practice themselves.
Completely aside from my disagreement with Harris's moral position on
abortion, there are three reasons why her request is not justified or
Acts and Omissions, Positive and Negative Demands
Harris wrongly argues that there is no difference
between positive and negative demands, or between acts and omissions. . . . she
glosses over what it means to be forced to violate one's
Harris wrongly argues that there is no difference between positive and
negative demands, or between acts and omissions. She claims that either
refusing to do something or positively doing something "reflects a
conscientious commitment" and is a "moral gesture." This may sometimes
be true, though we are talking about far more than "gestures" here. But she
glosses over what it means to be forced to violate one's
My conscience may be telling me all the time that it is right to take
positive action to promote the good for myself and others. Those calls are
open-ended, and I may act on them my entire life without ever fully
satisfying them. But I do not violate one of those positive norms
if I pursue some other good action instead for a while. I do not violate the
call to care for the poor, for example, when I take some time to eat, sleep,
and provide for my children's education.
Our laws reflect this fact. Almost any law may forbid
me to do something I think is morally acceptable at a given time-for
example, robbing, libeling, or attacking people who I may think deserve it.
And many laws that allow certain actions still limit when, where, how, and
by whom they may be done. I am allowed to provide medical services to the
homeless, but only if I first acquire a medical degree and requisite
certification, and operate out of an approved facility. None of these
requirements, though, violates the demands of my conscience to care for the
Likewise, if a Catholic hospital tells a doctor on its staff that he may
not perform abortions on those premises, it does not violate his
conscience-it implies only that he may have to perform them at another time
and place. That doctor can hardly object as a matter of conscience to not
doing an abortion here and now, since not doing an abortion here
and now (that is, doing something else instead) is already how he spends
most of his time. If a law did insist on his right to do an abortion here
and now, that would make demands on others, such as hospital staff, to help
make this possible-potentially against their consciences.
By contrast, if government or my employer makes me agree to do something
my conscience tells me is gravely wrong, I must directly violate
that negative norm-for example, the norm against killing the innocent. I
have sacrificed my moral integrity. I have made myself, in my own moral
judgment, into a person who kills. It is absurd to say to a pro-life
physician: "No problem. You can still refuse to do an abortion next week, or
at your medical practice down the road." Further, if a doctor stands by his
or her conscientious refusal, that infringes no one else's conscience: It
simply takes this doctor out of the picture, and forces no one else to do
anything at all.
Someone might say: Yes it does. It forces the woman to seek her abortion
elsewhere. But that is simply false. The doctor is not making her seek an
abortion at all, and may be perfectly willing to offer assistance that in
the doctor's judgment is much better than abortion for the health of her and
Harris wants to deny this distinction between acts and omissions. In an
article in 2008, she acknowledged that "there is violence in abortion,"
but added: "I consider declining a woman's request for abortion
also to be an act of unspeakable violence." I submit that this claim does
violence to common sense and the English language. She is saying that by
doing nothing (or by providing perfectly legitimate life-affirming health
care that everyone supports, instead of an abortion), the pro-life doctor is
committing an act of violence, comparable to the grisly acts of
dismemberment she so graphically describes from her own experience. One
might as well say: By simply existing as who he or she is-by
refusing to have the opposite identity-the pro-life doctor is guilty of
This answers the question I left open earlier: Why does Harris criticize
even the Church amendment, which forbids discrimination against those who
are willing or unwilling to do abortions? I think it is because she
realizes that the only way to respect those unwilling to do abortions is
never to make them do abortions that they see as wrong. But hospitals
can and do respect those "willing" to do abortions without letting
them actually perform any abortions on the premises-they just have to
exercise that willingness elsewhere.
Maximizing Life-Affirming Health Care
The second reason Harris's claim won't work is that an oft-stated purpose
of conscience clauses is to ensure that society will benefit from a full
range of caring professionals who can provide life-affirming health care to
all in need. If society required all doctors and nurses to perform abortions
in order to practice medicine, we could lose the caring and skills of many
thousands of very competent life-saving professionals-not to mention the
Catholic hospitals that care for one-sixth of all hospital patients in the
By contrast, what public interest in general health care is served by
facilitating doctors' performance of abortions? That only takes
more doctors away from other widely supported life-affirming health
care that all men and women need.
But what about the public interest in maximizing abortions? That brings
us to the third reason why Dr. Harris's demand is misplaced.
No national governmental body-whether legislative or judicial-has said
that government has an interest in maximizing abortions. Nor does public
opinion support such a claim, as most Americans (male and female) generally
describe themselves as "pro-life," and few people say there should be more
abortions than there already are.
On this point the Supreme Court's own stance is widely misunderstood.
Since 1973 the Court has ruled that government generally may not prohibit
abortion. But it also has consistently acknowledged government's legitimate
secular interest in "encouraging childbirth over abortion." And it has said
this interest justifies bans on public funding of abortion, and a variety of
regulations and restrictions that fall short of a ban on abortion.
In upholding a ban on federal abortion funding, the Court explained the
government's interest this way: "Abortion is inherently different from other
medical procedures, because no other procedure involves the purposeful
termination of a potential life" (Harris v. McRae, 1980).
This cryptic reference to the unborn as having a "potential life," a term
with no clear meaning, has given way in later cases to a straightforward
recognition that by regulating abortion "the State . . . may express
profound respect for the life of the unborn" (Planned
Parenthood v. Casey, 1992) (emphasis added).
In its most recent abortion decision, Gonzales v. Carhart
(2007), the court upheld a federal ban on partial-birth abortion, a law
that it said "expresses respect for the dignity of human life." Here the
justices reaffirmed government's "legitimate interests in regulating the
medical profession in order to promote respect for life, including life of
In short, our laws-and even the Supreme Court's jurisprudence-do not
treat performing an abortion as something that is just as good or
"conscientious" as delivering a live baby instead. Government has an
interest in promoting the latter and discouraging the former. Lawmakers have
no constitutional mandate, and the public has no desire, to treat them as
Respect for the Human Dignity of All
Of course this does not mean that anyone may treat those who provide
abortions as having less human dignity, much less threaten them with
physical harm. In its teaching document Gaudium et spes, for
example, the Catholic Church calls abortion an "infamy" against human life,
but also calls for "respect and love" for those whose views differ from ours
on fundamental issues: "It is necessary to distinguish between error, which
always merits repudiation, and the person in error, who never loses the
dignity of being a person even when he is flawed by false or inadequate
religious notions." In fact, according to the Catholic Church, God Himself
"forbids us to make judgments about the internal guilt of anyone" (Gaudium
et spes, 28).
So where does this leave Harris and her colleagues? At present it leaves
them free, by and large, to keep performing abortions, despite the
conscientious objections of other Americans, including many members of their
own profession. They are free to think and say that abortion is a good
thing, as they have the same constitutional rights of free thought and free
speech as everyone else. Currently they can even call on the federal
government for extra protection for their safety, under laws such as the
Freedom of Access to Clinic Entrances (FACE) Act. But they cannot insist
that the rest of us act as though we agree with their choice, or demand that
we help nullify what Harris calls the "stigma" of doing abortions. Instead
these practitioners might try a bit harder to understand why, forty years
after abortion's legalization, that stigma seems to be as strong as ever.