Whose Freedom? Institutional Conscience Clause Under Consideration in California
Kathryn Joyce printable version print page     Bookmark and Share
Mon Jan 29, 2007 at 02:34:21 PM EST
The Christian Medical Association (CMA), a Tennessee-based activist group of Christian doctors and dentists whose leadership includes alumni of Franklin Graham's Samaritan's Purse, has been actively involved in both openly faith-based and pseudo-scientific challenges to women's reproductive health options ranging from RU-486, to in vitro fertilization to, of course, birth control. Now the group, "the nation's largest faith-based organization of physicians," is taking its case to California, appearing as "Intervenor-Defendants" in a lawsuit brought by the state's Attorney General,  Lockyer v. United States, that challenges the constitutionality of the Weldon Amendment, an institutional "conscience clause" surreptitiously added to an omnibus "must-pass" spending bill in 2004 the night before the legislation was up for vote. Following the decades-long anti-abortion strategy of "chipping away" at abortion accessibility, the measure, which was introduced by Florida Representative Dave Weldon, a staunch Republican and anti-abortion activist, extended the "right of refusal" - that is, the exemption of individual doctors with specific religious objections from performing abortions; a right they have always had - to any health care entity. In effect, this meant treating hospitals and health clinics, insurance companies and corporate HMOs as though they were conscientiously objecting individuals, who could refuse to provide service or coverage for any abortion services, information or referrals on the same moral grounds that a Catholic doctor, for instance, has long been able to use. And for doctors or health care workers who support abortion rights in anti-abortion hospitals, clinics, or HMOs, the amendment could have the effect of a gag order.
But you'd never know that from the way that anti-abortionists discussed the bill. When it was passed, supporters called it the "Conscience Protection Amendment," or the "Abortion Non-Discrimination Act," claiming that it would "protect" health care entities like HMOs from "discrimination" at the hands of state governments that tried to force them to provide reproductive health services and information. It expanded the definition of what sort of entity could reasonably said to have a "conscience" that warranted protection and special consideration - a question of "a balance of rights" that the ACLU suggested resolving by favoring individuals with specific religious objections, not vague, amorphous corporate entities with nebulous "moral objections" (which in some cases have amounted to pressure and ultimatums from anti-abortion activists who don't want abortion services offered in their community). But though the ban was made to effect institutions, anti-abortion groups spun the bill as a protection of individual health care workers against abortion-rights advocates' using government agencies to coerce unwilling health care workers to participate in abortions.

Specifically, the Weldon Amendment enforces its "conscience clause" objections by cutting off funding for state or local governments that require their hospitals to provide a set of basic reproductive health services as a condition of receiving financial aid.

Just weeks after the passage of this 2004 bill, vilified by abortion-rights advocates across the board as a vastly misleading evocation of religious repression, California Attorney General Bill Lockyer and Superintendent of Public Instruction Jack O'Connell filed a lawsuit to block the amendment, which they described as "a federal spending restriction that could deny $49 billion in federal funds to California if the state enforces women's constitutional right to emergency abortion care."

"The Weldon amendment tramples on women's constitutional rights, state sovereignty and the interests of California taxpayers," said Lockyer. "Equality for women is illusory unless they remain free to make their own health care decisions. With the Weldon amendment, President Bush and Congress are denying women that freedom. And the danger doesn't end there. The funding restrictions could damage the state's ability to improve our schools, make our children safer, aid jobless workers, collect child support from deadbeat parents, and provide child care to poor people trying to get on their feet."

Said O'Connell: "The Weldon amendment threatens to hold funding for schools and other important government services hostage in an effort to force states to restrict women's reproductive health options. This unfair provision of federal law must not be allowed to stand. California law rightly protects women's reproductive freedom. Our schools and our students should not be penalized because of it."


The spending restriction at issue resides deep inside an appropriations act that provides states at least $143 billion in federal funds for labor, health and human services, education and related programs. California state agencies, including the Department of Education, expect to receive about $49 billion in federal dollars under the act, according to the complaint. The Weldon amendment jeopardizes California 's receipt of all these funds.

The amendment prohibits disbursement of any funds made available under the act to any state or local government that "subjects any institutional or individual health care (provider) to discrimination on the basis that the health care (provider) does not provide, pay for, provide coverage of, or refer for abortions."

"Congress cannot constitutionally circumvent a woman's fundamental right to reproductive freedom through the Weldon amendment's draconian funding restrictions," the complaint states. "Because this coercive federal statute is wholly inconsistent with our federal system of government, this court should strike it down."

But such a rebuttal to the Weldon Amendment's misleading rhetoric of "rights," "freedom" and "conscientious objection" does not prevent its advocates from continuing to employ such defenses. Today, the CMA's press release called Attorney General Lockyer's challenge to the amendment "reverse discrimination," and reinforced the notion of the oppression inherent in upholding universal standards of patients' access to reproductive healthcare:

CMA CEO Dr. David Stevens noted, "The Attorney General's attack on conscience protections is essentially an attack on the First Amendment freedoms of healthcare providers who wish to act consistently with their religious or ethical standards. Our country was founded by individuals who had personally experienced the pain of overreaching governments that tried to force them to deny their religious beliefs. That's why the United States has historically prevented governments from tramping over the religious freedom of expression in the form of conscientious objection.

"The state Attorney General's opposition to these freedoms specifically targets and threatens faith-based hospitals, clinics and providers who provide irreplaceable services to underprivileged patients who otherwise would have nowhere to turn for help. These institutions and individuals will not compromise their conviction that abortion immorally ends a human life. Is the state of California prepared to shut down these vitally needed faith-based hospitals and clinics?"

Senior Vice President and OB/GYN Dr. Gene Rudd added, "Hopefully the court will recognize not only the constitutional freedoms for healthcare providers with deeply held convictions, but also recognize the political motivation behind this attack on conscience protections. If fewer physicians objected to abortion as immoral and unethical, pro-abortion forces would not have to be attempting to force physicians to perform abortions. It is sadly ironic that those who march under the banner of choice are trying to force others to conform to their beliefs.

"It is imperative that we protect the ethical integrity of physicians and the medical profession by allowing them to act on their ethical convictions. We do not want a nation of doctors without conscience."

At the time the Weldon Amendment was passed, I studied the different ways that such religious and individual "freedom" language was being used by anti-abortion activists to subvert individual, and especially low-income, women's access to abortion in the name of "protecting" large corporations from acting against their "consciences." I found that not only were the "health care providers" in question far from the besieged individual doctors supporters made them out to be, but that the "right of refusal" was being turned on its head in conservative communities, where hospitals and doctors that wished to provide abortion and contraception services were being intimidated or coerced into not providing them:

Who were these besieged health care workers being forced to violate their consciences? In New Jersey, it was a public clinic that merged with a Catholic hospital and agreed to stop providing abortions. How was it oppressed? By a New Jersey court ruling that public hospitals bought out or merged with Catholic hospitals should establish a trust fund for patients who sought sterilizations, abortions or related referrals for services that would no longer be available from the clinic. In Palmer, Alaska, it was a group of religious conservatives elected to a local hospital board who voted to end abortion services at a local hospital, charging that abortion was "out of step with community norms." Their evidence of discrimination? A lawsuit filed by an obstetrician-gynecologist who performed abortions at the hospital, and sued for the right to continue following the dictates of his conscience. In New Mexico, it was a county commissioner, Paul Curry, who inserted language into a public hospital's long-term lease agreement, requiring limits on abortion "as a method of birth control," with the accusation that the non-profit hospital might someday market abortion as a money-making scheme. Curry's oppressor? A state finance board which ruled his arbitraty insertion of the anti-abortion clause into the lease terms unconstitutional.

These three examples of non-religious hospitals suffering "discrimination" for their anti-abortion policies were cited as proof of the necessity of the Weldon Amendment, and continue to be referenced by Weldon Amendment supporters like CMA as evidence of religious discrimination against defenseless pro-life doctors. But compared to the merging hospitals and activist hospital board members, we should keep in mind the actually defenseless players in this scenario: poor or rural women with limited health care options who may be restricted to faith-based hospitals because of their circumstances, or women locked into anti-abortion and anti-contraception insurance and health plans. These are the people who are protected by state regulations, such as the ones California is fighting to maintain, that attempt to ensure equal access to services for all patients. And that notion of patients' rights is something that must be remembered and repeated when discussing cases such as Lockyer v. United States, where double-speaking defendants assume the mantle of oppression in order that they might legally discriminate against others, or in any other instances of media-spun claims that the rights of HMOs' "consciences" are of more importance than patients' rights to the care they provide.

Here's a link to a partial list of state laws concerning "conscience clauses": http://www.ncsl.org/programs/health/conscienceclauses.htm

by Kathryn Joyce on Mon Jan 29, 2007 at 03:51:40 PM EST

This is an example of what's wrong with the concept of corporate 'personhood'.  Civil rights and human rights are for humans, not corporations.  Corporations get the government-given rights of living more-or-less in perpetuity and of limiting the liability of their owners.  There's no good reason they should also get the added advantages of what we like to think of as God-given personal rights. Intrusive regulation of a sort that no human should have to experience is a fair exchange for what corporations have been given.  It's a rather Faustian bargain -- in return for their charters, they give up their claims to having souls.

I think this is a religious issue that needs to be made much of.  Corporate personhood, which has a very shaky legal underpinning and is being attacked at the local level in a few places, strikes me as being idolatrous as well as unconstitutional.  The Program on Corporations, Law and Democracy (POCLAD-www.poclad.org) has good information on the constitutional issues.

by wipeltz on Tue Jan 30, 2007 at 08:37:23 PM EST

This is a bit tangential, but important: just this week, a young woman in Florida who had been raped, upon reporting it to the police, was arrested and jailed based on a technicality related to a 4-year old conviction from when she was a juvenile. While in jail, a female guard refused to allow the woman the emergency contraceptive she'd been prescribed after the rape on the grounds that it conflicted with the guard's religion. An astounding example of where unregulated "conscience clause" exemptions can take us.

by Kathryn Joyce on Wed Jan 31, 2007 at 06:02:12 PM EST

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