Repelling the Attack on Conscience
Discourse: Ethics, Law and the Common Good
February 23, 2011
Reproduced with permission
If opponents of conscience protection want to
encourage high-quality, readily available health care for women, especially
vulnerable women, they could not do better than to ally themselves with
supporters of conscience protections. In the United States, this group is
regularly comprised of the kinds of providers and institutions ready to
assist the most vulnerable women, even with free or low-cost care.
A new bill is needed to fix the healthcare law's failure to adequately
There is no need to view the matter of conscience protection in health
care as a zero-sum game between conscience-driven healthcare providers and
the patients they serve, particularly the most vulnerable. Opponents of
conscience protection often portray the situation this way, but the opposite
is true. It is by protecting conscience, and thereby elevating the value of
respect for life in health care, that we are likely as a nation to serve and
reflect the values of most Americans, particularly the vulnerable. There are
four primary points that underscore the compatibility of conscience and
First, less privileged women are less likely to support abortion or
abortion funding than are more privileged women, or than men. They are also
less likely to abort their nonmarital pregnancies than their more privileged
sisters.1 Yet even if one believed that
abortion is properly considered health care-it is not-it is hard to claim
that America faces a shortage of abortion providers. Over 1.2 million
abortions occur each year in the United States. Notably, women who are poor
or members of racial minorities, far from facing a lack of access, have a
disproportionate number of abortions. Alternatives to abortions abound,
but they will only be reduced if those who seek to drive conscientious
medical practitioners from the field succeed.
Second, abortion has not mainstreamed into the American healthcare
system. It remains rather, in
words of the New York Times, at the "margins of medical
practice."2 This is very likely why
opponents of conscience protections-which they call "refusal clauses"-are
calling for the government and conscience-driven private providers to give
them what the market has steadfastly refused: widely dispersed sources for
abortions provided in hygienic medical settings. Instead, today-even after
38 years of legal abortion in the United States-we see:
87% of U.S.
counties with no abortion provider; a
relatively small percentage of doctors willing to provide abortions, due
largely, according to the Guttmacher Institute, to the stigma associated
with abortion among physicians and in the medical profession generally;395%
of abortions delivered in free-standing clinics, not in hospitals or
doctors' offices; and a steady stream of
reports of abortion providers violating the most basic standards of
health care for vulnerable women, or even violating women's human rights.
Reports emerged just in the
last few weeks, for example, about employees of several Planned Parenthood
clinics offering to cooperate with a man posing as the leader of a sex
trafficking ring of minor girls.
Third, there is an emerging scientific and cultural willingness to
conclude that abortion is a form of killing, and not health care for women.
A majority of our Supreme Court called abortion killing in Gonzales v.
Carhart,4 and many abortion
providers and advocates of legal abortion do the same.5
Fourth, more broadly, there is
evidence from a growing body of sociological as well as law and
economics literature that more easily available abortion is associated with
women's "immiseration," and not their flourishing. When Justice Sandra
O'Connor wrote in the Planned Parenthood v. Casey opinion that
women had "organized intimate relationships, and made choices that define
their views of themselves and their places in society, in reliance on the
availability of abortion in the event that contraception should fail,"6
she was even more right than she likely knew. According to leading scholars,
it certainly appears that more easily available abortion has led to
expectations of more uncommitted sexual encounters-a situation which itself
contradicts women's demonstrated preferences7-and
thereby to more sexually transmitted infections, more nonmarital pregnancies
and births, and more abortions. Women of color, poor women, and recent
immigrants are suffering these consequences in disproportionate numbers.8
Still, extant abortion providers manage to perform
over 1.2 million abortions annually. . . If opponents of conscience
protection believe this to be too few abortions, current law leaves them
free to provide more abortion services themselves, rather than force
conscience-driven providers to do so by means of federal fiat.
Still, extant abortion providers manage to perform over 1.2 million
abortions annually, disproportionately among these less advantaged women. If
opponents of conscience protection believe this to be too few abortions,
current law leaves them free to provide more abortion services themselves,
rather than force conscience-driven providers to do so by means of federal
fiat. Recent events indicate that the nation's largest abortion provider is
having difficulty convincing even its own members to expand the supply of
abortion. Just this past month, a Planned Parenthood affiliate
resigned from the
national organization after the latter insisted that each affiliate
perform abortions. The head of the Texas affiliate told the Corpus Christi
newspaper that "there are far greater needs in our area than abortion.â€¦We
don't need to duplicate services."
If opponents of conscience protection want to encourage high-quality,
readily available health care for women, especially vulnerable women, they
could not do better than to ally themselves with supporters of conscience
protections. In the United States, this group is regularly comprised of the
kinds of providers and institutions ready to assist the most vulnerable
women, even with free or low-cost care. These include, for example, Catholic
alone provided care for nearly 86 million patients at 561 hospitals.
These also include networks of
individual doctors willing to provide free or low-cost health care to
women. These providers have demonstrated their sense of vocation, and a
sensitivity to the needs of the most vulnerable. If not for these
institutions and providers, a great deal more of the work of caring for the
sick, the poor, and the marginalized would fall to the government, or simply
go undone. They are proof that protection of conscience and care for the
vulnerable are not opposite values, but overlapping ones, or even one and
the same. These are not the providers that the law should be driving out of
the healthcare marketplace.
. . . the Affordable Care Act . . .does not
encompass refusals to train for abortion, nor does it protect providers or
healthcare entities against discrimination by various government entities or
institutions receiving federal funds.
The Protect Life Act will help to ensure that conscience-driven
healthcare providers remain in this marketplace, and able to continue to
provide their vital services to all Americans, particularly the most
vulnerable. While the Affordable Care Act allowed such providers some
protection, it did not go far enough. The final Senate bill, later passed by
the House of Representatives, lacked some basic and important conscience
protections. For example, while the Affordable Care Act prohibits healthcare
plans that qualify to participate in state health insurance exchanges from
discriminating against any healthcare provider or facility because of its
unwillingness to provide, pay for, provide coverage of, or refer for
abortions, it does not encompass refusals to train for abortion, nor does it
protect providers or healthcare entities against discrimination by various
government entities or institutions receiving federal funds.
Also, the Affordable Care Act's protection from discrimination by
governmental action is limited to procedures designated as assisted suicide,
mercy killing, and euthanasia. The Protect Life Act, on the other hand, adds
that neither federal agencies nor programs, nor any state or local
government receiving federal financial assistance, may discriminate against
any institutional or individual healthcare entity or require any health plan
created or regulated under the Affordable Care Act to discriminate against
any institutional or individual healthcare entity on the basis of a refusal
to train, require, or provide training for, perform, participate in, provide
coverage of, or pay for, or refer for abortions.
The Affordable Care Act also explicitly neglected to protect existing
state conscience protections against preemption, even while it did protect
against federal preemption of state abortion laws regulating abortion or
abortion coverage. The Protect Life Act explicitly provides that federal law
does not preempt state conscience protection laws. This is crucial, given
that these have been enacted today in
47 states and the District of Columbia.
The Affordable Care Act also lacked sufficient enforcement mechanisms in
connection with its limited conscience protections. Given the hurdles to
claiming a private right of action in connection with federal conscience
laws (see, e.g. Cenzon-Decarlo v. Mt. Sinai Hospital, 626 F.3d 695
(2nd Cir., 2010)), and the recent replacement9
by the Obama administration of more protective with less protective
healthcare conscience regulations,10 it
is important that this comprehensive new healthcare law specify enforcement
mechanisms. The Protect Life Act does this, by explicitly giving U.S. courts
jurisdiction to prevent or redress violations. Furthermore it gives not only
the Attorney General of the United States, but also "health care entit[ies]"
the ability to commence an action. It also designates the Office for Civil
Rights of the Department of Health and Human Services to receive and pursue
investigation of such complaints.
The freedom of religious and moral conscience is so widely recognized as
to be enshrined in the United Nations' Universal Declaration of Human
Rights. Our current President, Barack Obama, has
declared that "[s]ecularists are wrong when they ask believers to leave
their religion at the door before entering into the public square," and has
suggested that some of the greatest reform movements in U.S. history were
spearheaded by religious and moral leaders.
Since the time of the founding, Americans have recognized the role that
people of faith and moral conviction played in the health and stability of
their communities. George Washington in his Farewell Address (1796)
opined that "Of all the dispositions and habits which lead to political
prosperity, religions and morality are indispensable supports.â€¦ A volume
could not trace all their connections with private and public felicity."
Early jurists concluded similarly. One Massachusetts Supreme Court opinion
The object of a free government is the promotion and
security of the happiness of the citizens. These effects cannot be produced,
but by the knowledge and practice of our moral dutiesâ€¦. Human law cannot
oblige to the performance of the duties of imperfect obligation: as the
duties of charity and hospitality, benevolence and good neighborhoodâ€¦ these
are moral duties, flowing from the disposition of the heart, and not subject
to the control of human legislation.
Abortion supporters' insistence to the contrary-that
healthcare providers check their consciences at the door-should be
recognized for the marginal and dangerous opinion that it is.
Abortion supporters' insistence to the contrary-that healthcare providers
check their consciences at the door-should be recognized for the marginal
and dangerous opinion that it is. In fact, for as long as abortion has been
legal, state and federal lawmakers have understood the need to provide
accompanying conscience protection.11
Before Roe. v. Wade, in states with limited abortion licenses,
conscience protections existed. In Roe's companion case,
Doe v. Bolton, the U.S. Supreme Court called Georgia's broad conscience
protections for hospitals and providers "appropriate"; these included
protections allowing hospitals, for example, to refuse to provide abortions,
or to set up ethics committees to evaluate requests for abortion, and
allowing individual providers to refuse to cooperate with abortions.
Immediately post-Roe, the Church Amendment was enacted at the
federal level to forbid healthcare entities receiving certain federal grants
or contracts to discriminate in training and employment against health
professionals or applicants for study because they are willing or
unwilling to participate in abortion or sterilization.
In sum, the Protect Life Act is a both a necessary and a wise amendment
to the Affordable Care Act. It helps preserve within our nation's health
care delivery system the valuable contributions made by conscience-driven
providers and institutions to the needs of the most vulnerable women and
men. It indicates that abortion has not attained the status of a "standard"
of health care, a message which might well help begin to reverse the
negative role played by legalized abortion in the lives of American women,
particularly the most vulnerable women. And it preserves in American law and
culture the bedrock value of respect for religious and moral conscience.
1. See, e.g. David M. Adamson, et al.,
How Americans View World Population Issues: A Survey of Public Opinion (Rand
Corporation, 2000), 55-56 (Table 5.7: Attitudes on Conditions Under Which
Abortion Should be Available by Socioeconomic and Demographic
Characteristics); see Kathryn Edin & Maria Kefalas, Promises I Can
Keep: Why Poor Women Put Motherhood Before Marriage 45 (2009).
2. Emily Bazelon, The New Abortion Providers, New
York Times Magazine, July 14, 2010.
3. See Lori Freedman, et al.,
Obstacles to the Integration of Abortion Into Obstetrics and Gynecology
Practice, 42 Perspectives on Sexual and Reproductive Health 146 (September
2010) ("The majority were unable to provide abortions because of formal and
informal policies imposed by their private group practices, employers and
hospitals, as well as the strain that doing so might put on relationships
with superiors and coworkersâ€¦. Several physicians mentioned the threat of
violence as an obstacleâ€¦but few considered this the greatest deterrent).
Abortion in the United Stated, 1973-2008; Project Daniel,
Numbering the Days of 'Legal" Abortion.
4. 550 U.S. 124, 129, 136 (2007).
5. Sarah Terzo,
ProLifeblogs.com, Dec. 4, 2009; See also the following statements: "I
agree that the way in which the arguments for legal abortion have been made
include this inability to publicly deal with the fact that abortion takes a
life." Frances Kissling, President and CEO, Catholics for a Free Choice
("Speaking Frankly," Ms., May/June 1997, page 67); "Sometimes a
woman has to decide to kill her baby. That is what abortion is." Judith
Arcana, Pro-Choice Author and Educator (Rosalind Cummings, "In Print: rights
of the accused," Chicago Weekly Reader, Friday, February 17, 1995);
"I have angry feelings at myself for feeling good about grasping the
calvaria (head), for feeling good about doing a technically good procedure
which destroys a fetus, kills a baby." A New Mexico Abortionist (Diane M.
Gianelli, "Abortion Providers Share Inner Conflicts," American Medical
News, July 12, 1993, page 36); "[T]he pro-life slogan, 'Abortion stops
a beating heart,' is incontrovertibly true." Naomi Wolf, Pro-Choice Author
(Naomi Wolf, "Our Bodies, Our Souls," The New Republic, October 16,
1995, page 29); "One of the facts of abortion, he [Ron Fitzsimmons,
executive director of the National Coalition of Abortion Providers] said, is
that women enter abortion clinics to kill their fetuses. 'It is a form of
killing,' he said. 'You're ending a life.'"An Abortion Rights Advocate
Says He Lied About Procedure, by David Stout, New York Times,
February 26, 1997, page A11; "Abortion kills the life of a baby after it has
begun." Planned Parenthood ("Plan Your Children for Health and Happiness,"
6. 505 U.S. 833, 835 (1992).
7. Roy F. Baumeister, Kathleen D. Vohs, Sexual
Economics: Sex as Female Resource for Social Exchange in Heterosexual
Interactions, 8 Personality and Social Psychology Review 339 (2004).
8. See e.g. Jonathan Klick, Thomas Stratmann,
"Abortion Access and Risky Sex Among Teens: Parental Involvement Laws and
Sexually Transmitted Diseases" (2006); Michael New Analyzing the
Effect of State Legislation on the Incidence of Abortion Among Minors
(Heritage Foundation, Center for Analysis Data Report #7-01); Timothy
Reichert, Bitter Pill, First Things (May 2010), Tim Harford,
The Logic of Life: The Rational Economics of an Irrational World
(2009); George A. Akerlof, Janet L. Yellen and Michael L. Katz, An
Analysis of Out-of-Wedlock Childbearing in the United States, 111 The
Quarterly Journal of Economics 277 (1996); Roy F. Baumeister, Kathleen D.
Vohs, Sexual Economics: Sex as Female Resource for Social Exchange in
Heterosexual Interactions, 8 Personality and Social Psychology Review
10. For a complete analysis of the differences between
the Bush administration conscience regulations and the new regulations
issued February 18, 2011 by the Obama administration, see the Christian
Medical Associations's ,The
New Conscience Regulation: Gutting Protection, Laying Landmines.
11. See Mark Rienzi, The Fourteenth Amendment
Right of Conscience: Roe, Casey, and the
Constitutional Right to Refuse, at
working paper series.