The Right of Conscience in the Age of Obama

American Spectator, November, 2009
Reproduced with permission

Daniel Allott* & Matt Bowman*

"Conscience is the most sacred of all property."
--James Madison

On May 24, DeCarlo, a nurse at Mount Sinai Hospital in New York City, was forced to participate in the killing of a 22-week-old unborn child by dismemberment. As she began her shift that morning, a superior informed her that she needed to assist in the late second-term abortion. DeCarlo protested that as a practicing Catholic, she had strongly held religious beliefs against killing unborn children.

Though she had repeatedly and in writing made her belief known to hospital administrators since she was hired five years earlier, DeCarlo was told on that day that if she did not participate, she would be charged with "insubordination and patient abandonment." That meant she might lose her job or her nursing license or both. Despite repeated tearful pleas, DeCarlo was refused. The next day, DeCarlo called the Alliance Defense Fund, which has filed a federal lawsuit on her behalf. DeCarlo stated later:

I couldn't believe that this could happen in the United States, where freedom is held sacred. I still remember the baby's mangled body with twisted and torn arms, fingers, legs and feet. It felt like a horror film unfolding. I kept imagining the pain this baby must have gone through while being torn apart with the forceps. It was devastating.

Pro-life advocates have had a year to come to terms with the most strident abortion advocate ever to ascend to the U.S. presidency. Having relied on either a pro-life president or pro-life congressional majority for 26 of the last 29 years, they confront an opposition emboldened as never before.

Nowhere is the scope of the abortion movement's ambition more evident than in its aggressive attacks on the rights of health care providers not to participate in life-destroying procedures. Through their statements and actions, Barack Obama and his abortion industry allies are pushing their goal to make experiences like DeCarlo's much more common.

THE PRIMACY OF CONSCIENCE is well established in American law. In 1973, after the U.S. Supreme Court's Roe v. Wade decision legalizing abortion nationwide, Congress passed the Church Amendment, which exempts private entities that receive public funds from having to provide abortions or sterilizations, and protects health care workers from being forced to assist in abortions and other practices if they work for fund recipients.

Subsequent laws have reinforced federal conscience rights and extended them to prohibit discrimination at all levels of government for refusing to participate in or train for abortion. According to the Guttmacher Institute, a nonprofit research organization affiliated with Planned Parenthood, 46 states also allow some health care providers to refuse involvement in abortion.

Despite the vast body of laws protecting conscience rights, there have been numerous recent attempts to weaken them through legislation, the courts, and licensing boards. In 1995, the Accreditation Council for Graduate Medical Education passed a regulation to mandate abortion training for medical school accreditation, and only federal law prevented its enforcement.

In 1997, the Alaska Supreme Court ordered a private, non-sectarian, pro-life hospital to begin performing abortions. And over the past decade, New York, Massachusetts, and California have considered laws to force private hospitals to provide abortion and other services.

Perhaps the most consequential blow to conscience rights came in the form of a simple statement. In November 2007, the American College of Obstetricians and Gynecologists (ACOG) declared that health care providers may not exercise their right of conscience if it might "constitute an imposition of religious or moral beliefs on patients."

Shortly thereafter, the American Board of Obstetrics and Gynecology (ABOG) issued a policy stating that board certification can be revoked "if there is a violation of ABOG or ACOG rules and or ethics principles or felony convictions."

According to Donna Harrison, MD, president of the American Association of Pro-Life Obstetricians and Gynecologists, the ACOG-ABOG policy would drive all pro-life ob/gyns out of practice. "In order to practice in hospitals you have to have board certification," she said in an interview. "Obstetricians and gynecologists have to practice in hospitals because they are procedure-surgery based. If you can't get hospital privileges, you can't practice."

Michael Leavitt, secretary of health and human services under President George W. Bush, summed up the medical establishment's position: "[I]f a person goes to medical school, they lose their right of conscience."

Conscience violations have become common. Freedom2Care, a coalition of 46 groups organized by the Christian Medical Association (CMA), lists on its website more than 50 instances of discrimination against secretaries, physicians, pharmacists, and hospitals. The number is likely much higher as many medical professionals do not know conscience protections exist, and pressure prevents others from coming forward.

In an online survey conducted on behalf of the CMA, 32 percent of faith-based health care professionals reported having "been pressured to refer a patient for a procedure to which [they] had moral, ethical or religious objections," and 20 percent of faith-based medical students polled said they are "not pursuing a career in obstetrics or gynecology because of perceived discrimination and coercion in that field."

IN RESPONSE TO MOUNTING HOSTILITY to conscience rights, last December 19 President George W. Bush, through the Department of Health and Human Services (HHS), issued the Provider Conscience Regulation, which went into effect on January 20. It enforced existing federal conscience laws by requiring fund recipients to certify compliance and specifies a mechanism for investigating complaints.

The New York Times and other critics claimed the Bush provision constituted "sweeping new protections." But the regulation simply recited the underlying statutes verbatim and required fund recipients to promise to comply.

Less than two months later, President Obama, through HHS, released a directive to rescind the Bush rule, citing unsupported fears that it exceeded existing protection and could endanger access to care.

President Obama insists he is a "believer in conscience clauses." Speaking to Notre Dame graduates last May, he said, "Let's honor the conscience of those who disagree with abortion." But he qualified his statement, saying he wanted to "draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

What is Obama's definition of "sensible"? We asked Rep. Joe Pitts (R-PA) about what an Obama conscience clause would look like. Pitts, a leading pro-life critic of President Obama, said "anything that Obama produces is going to be suspect. He doesn't speak the whole truth. He's liable to come back with a clause full of loopholes."

Randy Pate, a political appointee at HHS who helped formulate the Bush conscience regulation, told us the Obama administration may have been surprised by the pushback against its efforts against conscience rights. (More than 340,000 people signed petitions in favor of the Bush regulations this March.) He thinks Obama "will wait until the broader health care reform debate dies down" before issuing his own conscience regulation.

The summer's health care reform debate thrust conscience rights into the foreground. In his speech to Congress on September 9, Obama said that "under our plan, no federal dollars will be used to fund abortions, and federal conscience protections will remain in place."

But even if Obama leaves federal conscience statutes "in place," those statutes may not apply to the vast new areas of regulation included in the bills. And to the extent that existing statutes do apply, Obama's rescission of the Bush regulation signals that his administration won't enforce them.

ONE OF THE BIGGEST controversies in the health care debate concerned whether a government-run plan would cover abortion. Donna Harrison notes that to the extent that government expands or mandates abortion and other unethical practices, "there is more pressure to violate the Hippocratic Oath, and there will be more challenges on the basis of conscience."

Citizens forced to pay into abortion-covering plans lose their conscience rights too. Although the Hyde Amendment prevents many federal taxpayer dollars from funding abortions, it applies only to certain appropriations such as Medicare. In contrast, Obama has said that he considers "reproductive care," including abortion, to be "essential care" to be covered by his public insurance plan.

Under HR 3200, the House bill passed in the House Energy and Commerce committee in August, the public insurance plan would have covered abortion at taxpayers' expense. Likewise, the Senate bill offered by Sen. Max Baucus in September would have funded abortions through health care cooperatives.

Pro-life members of Congress from both parties saw the need to explicitly exclude abortion in the language of any reform bill. And no fewer than seven amendments (including four by Reps. Pitts and Bart Stupak [D-MI]) to ban government funding of abortion were proposed before the August recess. All were voted down.

Instead, Democrats offered a number of abortion funding "compromises." Congresswoman Lois Capps (D-CA) introduced an amendment that paid for abortion but claimed the payment came out of private premiums. But the National Right to Life and the U.S. Catholic Bishops opposed the arrangement as an accounting sleight-of-hand. Rep. Stupak called the proposal "a hidden abortion mandate."

Government-sanctioned abortion coverage is unpopular. According to a 2008 Zogby poll, 71 percent of Americans do not want to pay for abortion nor have their employers provide health care that pays for abortion.

DESPITE THE LONG HISTORY and public opinion in favor of conscience protection, it is difficult to see how the debate will be resolved. Both sides have entrenched positions. From the perspective of abortion rights advocates, conscience rights erode a settled constitutional right that trumps all other interests. As Obama has said, "reproductive justice" is "one of the most fundamental rights we possess."

The Planned Parenthood website states that "it is unethical for health care providers to stand in the way of a woman's access to safe, legal and professional healthcare."

Abortion rights advocates are particularly concerned because groups like ACOG have warned that "the availability of abortion services is in jeopardy." According to the Guttmacher Institute, the number of abortion providers dropped from 2,908 in 1982 to 1,787 in 2005. And 87 percent of U.S. counties, including 31 percent of its metropolitan areas, have no abortion availability.

To pro-life advocates, forcing participation in the moral evil of abortion violates doctors' duty to protect human life. They argue that the real access issue involves the likely decrease in overall medical services as thousands of pro-life medical professionals are forced out of the profession. As Christian Medical Association CEO David Stevens, MD, stated about the Bush rule rescission, "Ultimately, it's just driving doctors with conscience issues out of practice."

In an April 2009 survey by The Polling Company/WomanTrend, 87 percent of adults felt "it is important to make sure that healthcare professionals in America are not forced to participate in procedures and practices to which they have moral objections." Further, 95 percent of 2,865 faith-based health care professionals said, "I would rather stop practicing medicine altogether than be forced to violate my conscience."

The anti-conscience movement has increasingly targeted pharmacists. According to Denise Burke of American United for Life, "The abortion lobby...recognize[s] that if [it] can establish legal precedent to coerce someone to violate their conscience regarding contraceptives, [it] can then easily extend that legal precedent to [RU-486], to coerce medical students to participate in abortion training, and to coerce doctors to participate in surgical abortion."

After abortion advocates convinced the Supreme Court to declare a fundamental right to contraception in 1965, Roe v. Wade followed relatively quickly in 1973.

In the 12 years since the Food and Drug Administration approved emergency contraception (EC) regimens, Planned Parenthood and the National Abortion Rights Action League (NARAL Pro-Choice America) have organized state campaigns to mandate EC dispensation. According to NARAL, "21 states have 32 laws and/or policies that improve women's access to EC."

A few states have enacted conscience clauses that protect pharmacists who choose not to dispense it. And some, paradoxically, have passed both.

But New Jersey exemplifies the trend with its 2006 law compelling dispensation not just of EC but of all "legal" prescriptions. Because first -- and even second-trimester abortions are increasingly performed by drugs like RU-486 and Cytotec, the New Jersey law is already an abortion mandate.

THE SITUATION WAS NOT always this bad. Former HHS appointee Pate said, "For years after Roe, there was a general consensus that there is a right to abortion but no duty to be involved. That's why there was bipartisan support of conscience rights." The Church Amendment passed the Senate 92 to 1. Even the late Supreme Court justice Harry Blackmun, author of Roe v. Wade, endorsed conscience clauses as "appropriate protection" for physicians and hospitals.

The American Medical Association's September journal for medical students states that "conscientious objection should be made when he or she chooses a specialty -- not when he or she faces a patient." The article states that physicians must "concede moral authority [for conscience] to the legal system, a professional organization, or the informal consensus of one's peers."

Dr. Gene Rudd, senior vice president of the Christian Medical & Dental Associations, responded in an interview that "the primacy of patient care has always been the fundamental tenet of medical ethics."

Mary Jean Schumann, the American Nurses Association's chief programs officer, disagrees. "Nurses are there for the patient," she said in an e-mail response to our question about the ANA's position on conscience rights. "It's the patient's right to make decisions on care based on their beliefs, not the healthcare providers' beliefs."

Planned Parenthood lawyer Julie Cantor, MD, wrote in the New England Journal of Medicine in April that, "As the gatekeepers to medicine, physicians and other healthcare providers have an obligation to choose specialties that are not moral minefields for them. Qualms about abortion, sterilization and birth control? Do not practice women's health....Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it."

Opponents of conscience protection rally around the ideal of patient autonomy. Yet they ignore the autonomy rights of patients who want to visit pro-life doctors. In the WomanTrend poll, 88 percent of American adults surveyed said it is either very or somewhat important to them that they share a similar set of morals as their doctors, nurses, and other health care providers.

Future debates over conscience rights will be exacerbated by newly created technologies like cloning and embryonic stem cell research, as well as by the increase in surrogate motherhood and assisted suicide. The U.S. Conference of Catholics Bishops has stated, "As the range of medical technologies continues to expand, the number of medical services involving potentially serious conflicts of conscience is certain to increase."

The irony is that the government created the conscience crisis by abandoning its duty to protect human lives. When the Supreme Court made murder legal, it imposed an unprecedented conscience threat on the medical community.

The opposite right not to participate in abortion isn't just one competing interest among many. It is a plea from a uniquely important profession. If special interests are allowed to narrowly define "patient autonomy" and elevate it above the ideal of life preservation, then the medical profession can become one that mechanistically dispenses death.

Several times during this summer's health care fights, Barack Obama stated his desire that we "not get distracted by the abortion debate." But as their attacks on conscience rights intensify, Obama and his allies will ensure that abortion remains a distraction for the foreseeable future.