Repelling the Attack on Conscience

Public Discourse: Ethics, Law and the Common Good
February 23, 2011
Reproduced with permission

Helen Alvaré*

A new bill is needed to fix the healthcare law's failure to adequately safeguard conscience

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 care.

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 the 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;3 95% 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 preferences 7-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.…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 hospitals which in 2009 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 (2^nd 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.… A volume could not trace all their connections with private and public felicity." Early jurists concluded similarly. One Massachusetts Supreme Court opinion stated:

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 duties…. Human law cannot oblige to the performance of the duties of imperfect obligation: as the duties of charity and hospitality, benevolence and good neighborhood… 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.

This article is adapted from testimony before the United States House of Representatives Committee on Energy and Commerce, Subcommittee on Health, Hearing on The Protect Life Act, February 9, 2011.

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Notes

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 coworkers…. Several physicians mentioned the threat of violence as an obstacle…but few considered this the greatest deterrent). Guttmacher Institute, Trends in 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," pamphlet, 1963).

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 339 (2004).

9. https://www.ofr.gov/OFRUpload/OFRData/2011-03993_PI.pdf

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.