Battle for Conscience Protection Isn't Over

U.S. Bishops’ Aide on New Bill’s Future Challenges

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WASHINGTON, D.C., DEC. 8, 2004 ( Health care providers who are unwilling to participate in abortion now have protection under federal law, thanks to a bill that just passed through Congress.

But a public policy analyst with the U.S. bishops’ Secretariat for Pro-Life Activities warns that the fight is not over.

Maureen Bailey shared with ZENIT how pro-abortion groups and legislators are challenging the new measure and introducing a bill to repeal it next spring — and what the Church is doing to protect conscience rights.

Q: Congress recently approved a conscience-protection amendment. What precisely does the amendment do?

Bailey: Congress approved the Hyde-Weldon Conscience Protection Amendment — named for its co-sponsors, congressmen Henry Hyde and Dr. Dave Weldon — to the omnibus appropriations bill. The president is expected to sign this bill at any moment.

The amendment very simply prohibits the federal government, and state and local governments that receive federal financial assistance, from discriminating against health care entities because the entities decline to provide, pay for, provide coverage of, or refer for abortions.

The amendment defines «health care entity» to include «an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan or any other kind of health care facility, organization or plan.»

Q: What have pro-abortion groups said about the amendment?

Bailey: These groups and their allies in Congress have been attacking the amendment, claiming it has far-reaching effects. For example, they say the amendment would prohibit health care providers from talking about abortion.

A pro-abortion member of the House of Representatives claimed that the amendment would allow a physician to refuse to complete a miscarriage, even if the woman’s death will result. Others have claimed that the amendment is an attack on Roe v. Wade.

Q: What is the truth about these charges?

Bailey: First, while Roe clearly needs to be reversed, this is not the amendment to do it. In fact, the amendment is entirely consistent with Roe. In Roe, the [U.S. Supreme] Court created a negative abortion liberty, a right against governmental interference in abortion. It did not create a positive right of access to have the government fund or facilitate abortion.

And subsequent Supreme Court decisions have clearly upheld the right of the state to decide not to pay for or provide personnel for abortion.

Second, conscience laws are on the books in 47 states. Only one of these provides a «life» exception, but in no state has there been a case of a woman dying because of an asserted conscience-right.

In any case, the claim that the amendment would allow a physician to refuse to complete a miscarriage is absurd. It protects physicians and other health care providers who choose not to kill unborn children. Completing a miscarriage involves removing a child who has already died.

And finally, under the amendment, no one is prohibited from talking about abortion. The amendment protects health care providers who are unwilling to participate in abortion. It does not affect the «rights» of willing providers — the ones who are performing the 1.3 million abortions each year in the United States.

One fascinating aspect of this debate has been hearing the side that is supposedly «pro-choice» denying choice to those who want to choose life.

Q: What was the impetus for this legislation?

Bailey: There is a concerted national effort to overturn, or exploit loopholes in, existing conscience protections.

Pro-abortion groups — including the ACLU, Planned Parenthood, the National Women’s Law Center and the Center for Reproductive Rights — are working to abolish or circumvent existing conscience protections and impose new mandates where no such protection exists.

For example, the ACLU of New Jersey intervened in a hospital merger in an attempt to force a Catholic hospital to build an abortion clinic.

In Florida, after a community hospital joined a cost-sharing consortium with a Catholic system and ceased performing abortions, it was sued by the city of St. Petersburg, which leased land to the hospital. Soon the ACLU sued both the city and the hospital. Under the pressure of the lawsuits, the hospital left the cost-saving consortium.

Q: Are these attacks on conscience rights limited to Catholic hospitals and mergers?

Bailey: No; in fact, the vast majority of hospitals, public and private, whether religious or not, do not participate in abortions. These hospitals, too, have been targeted by pro-abortion groups.

For example, in Alaska the Center for Reproductive Rights and the ACLU brought a lawsuit to force a community hospital to allow late-term abortions on its premises. In the course of the lawsuit, the Alaska Supreme Court struck down, in part, the state’s conscience law.

And in New Mexico, the state board of finance refused to approve a county/city owned hospital lease because the lease contained a provision disallowing elective abortions at the hospital.

In the words of a county commissioner, the pro-life policy was stated in the lease because «there was a desire that our hospital focus be on health care and life, and there is a desire that it would not become, in the community’s eyes, a place where you might have an abortion mill in the future.»

But the hospital succumbed to the coercion of the board and agreed to remove the pro-life policy from the lease. New Mexico, too, has a conscience law on its books.

In many of these cases, the pro-abortion groups with allied government officials tried using a federal angle by claiming that receipt of federal funds required the hospital to do abortions, or that somehow not doing abortions is a violation of Roe or the First Amendment.

So, it was necessary to make federal law clear: The federal government — and state and local governments receiving federal funds — are not to discriminate against pro-life health care providers.

Q: What more should be done to protect the right of conscience for health care workers?

Bailey: In the next Congress, pro-abortion senators will introduce a bill to repeal the Hyde-Weldon Conscience Protection Amendment. Some time before May, the bill will be considered, with four hours of debate and without amendment. So, there is still a need to protect the amendment by contacting senators and educating the public.

At the same time, there is a particular need to educate health care providers about their existing rights under state laws and to protect them from threats on other issues. The campaigns to mandate contraception and emergency contraception are incremental steps in the effort to erode the conscience rights of health care providers.

Q: How is the Church responding to right of conscience issues?

Bailey: The Church is actively working on this issue in the legislative arena. Protection of conscience rights, and in particular, the adoption of the Hyde-Weldon Conscience Protection Amendment, has been one of the USCCB Pro-Life Secretariat’s top legislative priorities.

Across the country, state Catholic conferences have been working to defeat new mandates. In states more favorable to conscience rights, the Church has been actively working for more positive protections of these rights.

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