Advocates for the rights of believers and Church institutions to follow their consciences on issues from abortion to same-sex marriage are feeling under siege, and they are fighting back.
Pro-life advocates point to the passage of last year’s Patient Protection and Affordable Care Act as a major threat to the conscience rights of health care providers because the law could provide a way for much health care spending to fall outside the purview of the Hyde-Weldon Amendment, which prohibits not only federal spending on abortion, but also discrimination against providers that do not perform abortion, said Richard Doerflinger, the assistant director of the U.S. Conference of Catholic Bishops’ Secretariat for Pro-Life Activities. While the Hyde-Weldon Amendment must be passed each year and applies only to spending from the Department of Health and Human Services, the health care reform act carries its own funding mechanism.
The American Civil Liberties Union also has asked the Department of Health and Human Services to interpret a long-standing law that requires hospitals to treat people — especially pregnant women — in emergency situations to mean that all hospitals must be willing to provide abortions to save “the life or health” of the mother, without explaining exactly what is meant by “health,” Doerflinger continued. That request has surfaced in congressional committee hearings on two pro-conscience bills.
At the same time, the Obama administration last month narrowed the definition of who could claim conscientious objector status in not wanting to participate in abortion, he said. Meanwhile, Hawaii will become the seventh state to allow civil unions for same-sex couples starting in 2012, under a law signed by Gov. Neil Abercrombie Feb. 23. Five other states and the District of Columbia allow same-sex marriage, with varying effects on the rights of Church institutions in those states. In Illinois, which earlier this year passed a bill legally recognizing same-sex civil unions, officials are considering whether Catholic and Lutheran social-service groups can decline to license gay couples as foster parents.
Attacks on conscience protection manifest the efforts of special interest groups to move from demanding that Americans tolerate their positions to insisting on a mandate that everyone approve of their positions, said Matt Bowman, legal counsel at the Alliance Defense Fund.
“They want to force society to participate in immoral acts,” he said. “It was always part of the plan to not stop at the toleration of their behavior.”
“We have seen increased campaigns to limit and eventually do away with conscience protections,” said Denise Burke, vice president for legal affairs at Americans United for Life.
The attacks are disturbing in a country where freedom of conscience goes all the way back to its founding, said Burke, who quoted James Madison as saying: “Above all, it is the particular glory of this country to have secured the rights of conscience, which in other nations are least understood or most strangely violated.”
In the area of abortion, conscience rights were widely discussed in the months leading up to and just after Roe v. Wade made the procedure legal in all 50 states, with the first Church Amendment — which gave medical practitioners the right to opt out of abortion procedures — passed within six months of the 1973 Supreme Court decision.
While the Obama administration kept protections for doctors who do not want to provide abortions or sterilizations, and put in place complaint procedures for those who think their conscience rights were violated, it is believed to have stripped rights from, for example, pharmacists who refuse to dispense “emergency contraception” that may, in fact, induce early abortions.
“The tip of the spear are attacks against pharmacists,” Burke said, noting that as the number of providers for surgical abortions shrinks, abortion-rights advocates are looking toward increasing the number of drug-induced abortions.
Agenda of the few
Indeed, as fewer doctors are willing to perform abortions, abortion-rights advocates have worked harder to force medical providers to perform the procedures, Bowman said, just as advocates for same-sex marriage have pushed for churches to recognize homosexual unions even as no state has approved same-sex marriage in a popular referendum. While churches have not been required to perform such rites, some states require church or faith-based entities to recognize same-sex couples for the purposes of providing services or benefits.
“I think it’s worth saying that advocates of immoral activity have to attack religious freedom because the American people are already reluctant to engage in abortion or homosexual behavior,” Bowman said. “As a result, the abortion industry is withering on the vine.”
Pro-life advocates, meanwhile, are taking advantage of the presence of more pro-life members of Congress, Doerflinger said. The USCCB is supporting three bills — the No Taxpayer Funding for Abortion Act, the Protect Life Act and the Abortion Non-Discrimination Act — that would improve recognition of the right of conscience, he said.
Such recognition is important to everyone, Burke said. If providers are required to violate their moral beliefs or get out of the business of providing services, many will simply get out.
“Catholic hospitals will have to close,” she said. “And they provide a disproportionate amount of the care for the poor and disadvantaged. It’s truly a case of putting a radical agenda ahead of the good of the nation.”
Michelle Martin writes from Illinois.
At End of Life (sidebar)
Threats to conscience protection are not just hitting at the beginning of life, or with same-sex marriage. Some proponents of physician-assisted suicide are proposing rules that would effectively require doctors to participate in the killing of their elderly patients, said Denise Burke, vice president of legal affairs at Americans United for Life.
“The euthanasia movement was dormant for a while, but not any longer,” Burke said.
Some advocates have proposed regulations that would force a physician to carry out his or her patient’s wishes, regardless of the doctor’s conscience or the expected outcome, she said. For example, the doctor could be required to discontinue nutrition and hydration for a patient at the patient’s request, leading to the patient’s death, even if the doctor requires food and water as normal, not extraordinary, care.
“If you made a blanket determination that a physician must follow the will of his patient, you might be putting doctors in that position,” she said. “We’re facing challenges on both ends of the spectrum.”