Week
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October 23, 2002
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From 'pro-choice' to coerced abortion
Health-care providers' conscience clauses under assault
By Richard M. Doerflinger
In
Colorado and nationwide, abortion advocacy groups are taking a decisive
step away from their old banner of "freedom of choice."
Gone is the claim that people should not "impose their morality on others" regarding abortion. The new abortion movement is about ensuring universal "access" to abortion — a goal it can only achieve by forcing those who are conscientiously opposed to abortion to become directly involved in it. The result is that to be accepted as "pro-choice" one must now support coercion toward abortion.
A case in point is the overview of state abortion policies on the Web site of the National Abortion and Reproductive Rights Action League (NARAL). Colorado allows abortion on demand throughout pregnancy, plays host to nationally known late-term abortionists like Warren Hern, and allows unemancipated minors to obtain abortions without their parents' knowledge. Yet the state rates only a "C" on NARAL's scorecard. One reason: Colorado law says that doctors, nurses and hospitals who object to abortion cannot be made to provide them against their will. Such laws, in effect in 46 states, have always been called "conscience clauses" because they protect health-care providers' right to act in accord with their conscience.
NARAL and the American Civil Liberties Union (ACLU) call these laws "denial clauses," and they are determined to rescind them through concerted legal action. That is why the Colorado NARAL Foundation founded a statewide "Access Project" this March, to promote access to "the full range of reproductive choices." The project will interview Colorado clinics, doctors and hospitals on whether they provide such "services," and apply pressure to those who do not.
Similar projects in other states have already intervened against Catholic and other hospitals to bully them into providing abortions. In New Jersey, after Our Lady of Lourdes health system bought a formerly secular hospital, abortion advocacy groups urged the state attorney general to require the Catholic system to build an abortion clinic on its premises — to preserve "access" to abortion in the community. In Alaska, endorsing the idea of a "right of access" to abortion, the state Supreme Court is forcing a community hospital to provide elective late-term abortions against the policy of its own governing board and the sentiment of the community. The Alaska court suggested that it may force the same mandate on Catholic or other religious hospitals in the future, because any special exception for religious health-care providers would risk creating an unconstitutional "establishment of religion."
Inevitably, such developments have come to the attention of Congress. On Sept. 25, the House of Representatives approved the Abortion Non-Discrimination Act (ANDA) (H.R. 4691, S. 2008) to ensure that health care providers who disagree with NARAL can continue to exercise their "freedom of choice" on abortion. But in Colorado and nationwide, the ACLU has denounced this bill as a "dangerous measure" that could deny a woman "access to the option she chooses" on pregnancy.
ANDA is brief and straightforward. It builds on a law that Congress passed in 1996 to protect medical residency programs from being forced by government bodies to provide abortions or abortion training. It clarifies and extends that law, to make sure that this protection covers the full range of individual and institutional health-care providers — hospitals as well as residency programs, nurses as well as doctors. It also retains the 1996 law's clause saying that nothing in the law can "prevent any health-care entity from voluntarily electing" to perform abortions or provide or receive abortion training. But for the ACLU and NARAL, allowing everyone to exercise voluntary choice is no longer the agenda.
These groups object that ANDA and state conscience clauses allow Catholic hospitals to exempt themselves from the mainstream norms for basic health care. The reality, however, is just the opposite. By pro-abortion groups' own figures, about 80 percent of counties in Colorado (and in the U.S.) have no abortion provider; 84 percent of all American hospitals decline to perform abortions. There is no agreement among American doctors, nurses or hospitals that abortion is basic or necessary health care. To elevate abortion to that status artificially, the ACLU and NARAL will have to invoke the coercive force of law.
In this campaign, ironically, these groups receive no support from the Supreme Court that legalized abortion in Roe v. Wade. The court sees the abortion "right" as a freedom from direct interference by government in one's abortion decision. It has never found that the government (or anyone else) has a positive obligation to provide abortions. In its 1989 decision in the Webster case, for example, the court said: "Nothing in the Constitution requires states to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions." If the government has no need to provide or promote abortion, it certainly has no mandate to make private parties provide or promote it.
In the face of the new pro-abortion campaign, however, simply maintaining the old status quo — in which health-care providers were free to decide whether or not to perform abortions — may now require the explicit clarification of federal law that ANDA provides. However, ANDA is now bottled up in the U.S. Senate, where Majority Leader Tom Daschle is not inclined to give it time for debate.
ANDA may have an opportunity to come up for Senate approval during the "lame duck" session that is now expected to take place after the November elections. Whether this will happen or not depends, oddly enough, on whether Senate Democrats and Republicans who say they are "pro-choice" really mean it. Will they support ANDA, so our government will continue to respect the conscientious views of everyone on abortion? Or will they follow the lead of NARAL and the ACLU, and demand that Catholic and other hospitals violate their consciences or go out of existence? Their constituents have a right to know the answer.
Richard Doerflinger is deputy director of the Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops.