Conscientious Abortions?

We Don't Need New Laws Protecting Abortionists

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.

Richard M. Doerflinger*

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 commentary in the New England Journal of Medicine (further publicized at a Washington Post blog).

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" debate.

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 double-edged?

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 v. Wade, reaffirmed in cases such as Planned Parenthood v. Casey (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 reasonable.

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 conscience.

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 conscience.

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 sick.

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 her child.

Harris wants to deny this distinction between acts and omissions. In an earlier 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 violence.

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 country.

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.

Maximizing Abortions?

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 the unborn."

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 morally equivalent.

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.