By Ann Carey
As the new administration begins to implement campaign promises to eliminate restrictions on abortion, the question of conscience protection for hospitals and health care workers -- and the consequences if it is revoked -- has returned with new urgency.
President Barack Obama already has ordered a review of the Department of Health and Human Services (HHS) regulations put in place by the Bush administration to enforce existing federal laws protecting health care conscience rights.
On top of that, some members of Congress are preparing to reintroduce the Freedom of Choice Act (FOCA), a measure more extreme than even Roe v. Wade because it would enshrine abortion as a "fundamental right" that can't be restricted in any way by federal, state or local government. A spokesman for Rep. Jerrold Nadler, D-N.Y., said FOCA is a "priority," and Nadler would reintroduce it "sooner rather than later." FOCA also had been introduced during the last Congress, on the day after the Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act. If reintroduced and passed, FOCA would override any restrictions on abortion such as informed consent and government funding, and the latest version did not include conscience protection.
Concern about FOCA has been rekindled with the makeup of the new Congress and Obama's campaign promise to sign the bill if it does pass.
But what does all this mean for Catholic hospitals and health care workers? Is conscience protection in immediate danger? Experts consulted by OSV agree that the threats are real and alarming, and FOCA is a terrible bill, but conscience protection is more likely to be eroded through backdoor means rather than by FOCA or revoking HHS regulations.
Francis Manion, senior counsel for the American Center for Law and Justice, is involved in a legal defense of the HHS regulations, but he said their rescission would not be an immediate threat to Catholic hospitals and workers, because the federal conscience laws would remain intact. However, rescission would be a strong signal of a bigger threat that is looming with the Obama administration.
"There is no question that President Obama himself campaigned on a 110 percent pro-abortion platform," Manion said. "What scares me, as somebody who defends peoples' rights of conscience all the time, is the people he's put in the Justice Department and at HHS: They do not like conscience protection ... and consider conscience laws to be obstacles to free access to what they call 'needed health care.'"
Leonard Nelson III, a professor at Cumberland School of Law at Samford University in Birmingham, Ala., said that FOCA doesn't apply directly to Catholic hospitals because it deals with government entities. But it could be interpreted to have a significant effect, primarily through funding, said Nelson, who is the author of a book being published in June, "Diagnosis Critical: The Urgent Threats Confronting Catholic Healthcare." Nelson said some could argue that Catholic hospitals "discriminate" by not providing abortions, and therefore should be denied Medicaid and Medicare funds; but this would be "an invitation to litigation."
Nelson believes that challenges to Catholic hospitals are more likely to come through Obama's comprehensive health care reform that might require participating hospitals to provide abortion. Moreover, the new health insurance plan Obama seems to favor would result in people going off private plans and onto new public plans, making hospitals even more dependent on public monies as government assumes more control of the system.
Douglas Johnson, legislative director of the National Right to Life Committee, agrees that "FOCA is not the thing that's the most immediate threat; a lot of the bad effects of FOCA could be achieved in piecemeal fashion."
Johnson is worried about the most important of the federal conscience protection laws, the Hyde-Weldon Amendment, which he said is "on the hit list of the pro-abortion industry." Hyde-Weldon extends conscience protection to individual and institutional health care entities that refuse to provide, pay for or refer for abortion. It is an easier target than other federal conscience laws because it must be renewed in every annual federal budget.
Hyde-Weldon survived the budget bill passed this month by Congress, but Johnson said the secretive process for that budget does not bode well for pro-life input into the budget bill for the next fiscal year beginning Oct. 1.
The Catholic Health Association (CHA) also is watching these challenges very carefully and working with the U.S. bishops to meet them, according to Sister Carol Keehan, a Daughter of Charity who is president and CEO of the CHA. She agreed that FOCA is not aimed directly at Catholic health care, but still must be opposed vigorously because of what it does to unborn children and their mothers.
If FOCA or some other law were enacted that tried to force Catholic hospitals to provide abortions, Sister Keehan said, the hospitals would refuse to do so and would fight to remain open to serve the patients who depend on them.
"We would consider that an unjust law, just as segregation was an unjust law, and we'd start on that long journey of appeal and demonstrations. But we're not, under any circumstance, going to compromise our moral principles, nor are we going to compromise our commitment to the people of this nation to serve their health care needs," she said.
Sister Keehan said that Catholic hospitals serve one of every six hospital patients, regardless of their faith. She believes the public would not tolerate Catholic health care being jeopardized by denial of public monies, plus it would be difficult for non-Catholic hospitals to absorb all the patients cared for in Catholic facilities.
"From the beginning of this country, Catholic health care has played a major role in the health of this nation," Sister Keehan said. "I don't see people sacrificing their Catholic hospitals by demanding that they do abortions."
If the millions of Catholics protesting with postcards the Congress' likely challenge to abortion restrictions rights is any indication, the Catholic community won't tolerate that pressure either.
The U.S. bishops launched a massive postcard campaign in January that asked senators and representatives to "please oppose FOCA or any similar measure, and retain laws against federal funding and promotion of abortion." Dioceses have ordered tens of millions of postcards.
Some have criticized the bishops for "over-reacting," because FOCA had yet to be introduced. But Deirdre McQuade, assistant director for policy and communications for the bishops' Secretariat for Pro-Life Activities, told Our Sunday Visitor that when FOCA was first introduced in 1993, the bishops launched their first-ever postcard campaign to oppose the bill, and that campaign was very effective.
"This is the most pro-choice Congress we've had in a while," she added, so the bishops wanted to act pre-emptively with the 2009 campaign. She noted that the postcards address all abortion-related issues, not just FOCA.
"Threats to the fundamental right to freedom of religion are real and multifaceted, and the bishops want to raise awareness and let Congress know we'll defend freedom of religion when it comes up in other sectors, too," McQuade said. "It is a high priority for the bishops to protect conscience rights and freedom of religion."
Ann Carey writes from Indiana.