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Conscience Protection at Risk Print E-mail
By William Saunders   
Thursday, 17 February 2011

In October, at a central European meeting with pro-life colleagues, I learned that in a few days there was going to be a vote in the Parliamentary Assembly of the Council of Europe concerning rights of conscience. The vote was on the “McCafferty Report,” which strongly recommended significant restrictions on rights of conscience. For instance, the Report “oblige[s] the healthcare providers to provide” (emphasis added) abortion in cases of “emergency.” “Emergency” here does not mean what you and I would think; rather the term was defined in the Report to include any threats to the woman’s “health.” “Health” is, in turn, an endlessly elastic term stretched by courts to include any situation, no matter how insignificant. In essence, the Report would have required the sacrifice of conscience rights whenever an abortion was vigorously sought.

The Parliamentary Assembly’s vote would not, under European laws, bind any state. But the political propaganda value of such a vote against conscience would be immense. With a favorable vote in hand, anti-life forces would be able to badger governments to restrict conscience rights based on the argument that such a vote represented a “European consensus.” And, of course, anti-life collaborators within those governments would readily agree that it did. (This argument based upon an alleged “European consensus” has been used by anti-life forces in other contexts as well, including the recently-decided ABC v. Ireland abortion case.) My pro-life European friends expected the McCafferty Report to pass easily.

In the event, however, the vote turned out to be a minor miracle. Instead of adopting the anti-conscience recommendations of the Report, pro-life parliamentarians succeeded in adopting recommendations much more favorable to conscience rights. Yet they still required that healthcare providers refer patients for those procedures to which “the patient is legally entitled” (which includes abortion), but which the provider refuses to perform.

I recount all this to illustrate that attacks on rights of conscience in health care are not limited to the United States. They are going on everywhere. And I think it is no exaggeration to see such rights as being dangerously at risk. 

   Cathy Cenzon-DeCarlo: required to participate in an abortion despite conscience objections.

In the United States, we can expect conscience rights to be restricted very soon. In December, in a lawsuit challenging the conscience protection regulations enacted by the Department of Health & Human Services (HHS) at the end of the Bush administration, but which remain in effect and thus bind the Obama administration, government attorneys, on behalf of the administration, informed the court, in writing, that HHS would issue its “revision” of the Bush regulations by the end of this month – in other words, by the end of February. The administration had issued an “intent” to revoke those regulations in the first weeks of Obama’s presidency, but had not so far done so. Thus, the court forced the Obama administration to make its intention clear. Now the question is whether the Obama administration will “revoke” or “revise” or, as many think likely, pretend to revise while doing so in a way that amounts to revocation. We shall soon see.

Conscience protections under U.S. federal law are disorganized and haphazard, consisting of three separate provisions, enacted years apart.  HHS under President Bush wished to clear up misunderstanding about the extent of federal conscience protection and make sure HHS would have regulatory authority to enforce it; its solution was to issue the conscience protection regulations, which Obama is moving to rescind.   

The mere existence of the regulations, however, is no guarantee they will be enforcedFor instance, Obama’s HHS seems disinclined to do so in a particularly egregious case, the case of Nurse Cathy Cenzon-DeCarlo. She was required to participate in an abortion despite conscience objections. A federal court, in a suit brought by DeCarlo, held that individuals whose conscience rights under the federal law were violated, nevertheless lack the right to sue to enforce those laws. Enforcement, in other words, is left to HHS. So far Obama’s HHS has declined to do so.

Nurse DeCarlo is also pursuing a case in state court in New York. In the United States as well as many other countries, conscience protection is not left solely to national law. In the absence of national law, the individual states are free to enact conscience protections. Americans United for Life and other organizations have developed model laws that can be adopted by state legislatures. Idaho adopted AUL’s comprehensive conscience protection model law last year, though efforts are already underway by anti-life forces to amend it so that healthcare providers must assist suicide, if Idaho legalizes it. Of all the states, Alabama is most in need of enacting conscience protection laws.

The issue of conscience protection reduces to this: should someone involved in healthcare (including institutions) be required to perform – or to assist in, or to refer a patient to someone else who will perform – a procedure he or she believes is morally wrong? With the legalization of abortion and assisted suicide, anti-life advocates argue that it is only reasonable that healthcare professionals should be required to perform “legal medical procedures,” and, unfortunately, much of the public will agree, not recognizing the conscience issues hidden therein. 

Freedom of conscience needs all the help it can get these days, both within and outside the United States. Anti-life forces are determined that freedom of conscience be eliminated. In this context, it was regrettable that the Bush administration waited until the last days of its eighth year to issue federal regulations. But it would be much worse if, as expected, the Obama administration revokes them altogether.

William Saunders
is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.

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Comments (4)Add Comment
written by Bill, February 17, 2011
This situation will not go away. John XXIII convened a Commission, generically referred to as the Birth Control Commission, just before his death, at the behest of the World Health Organization (WHO). As we know, many Catholics supported/support the use of contraceptives which lead to the abortion of the "unwanted foetus". You and many pro-life organizations are doing a great job of attempting to stall this horror, but the opposition is well organized and well funded.In order to accomplish their goals, they are willing to allow a man who cannot produce a birth certificate to be the President of the United States.
written by Bill, February 17, 2011
A Post Script: When one reads your piece three times, an epiphany leaps from the page-the tremendous demand to have abortion accepted world-wide necessitates the destruction of ANYTHING which would stand in the way.Of course,the major obstacles are the Roman Catholic Church and Islam. This explains why the West is attempting to destroy Islam militarily and the Church by pressing constsntly for aberrosexual "marriage", pornography, divorce, contraception, etc. in order to reduce the influence of the Church. The problem: When the Blessed Mother warned of "a war greated than this war",she was warning of WW II which brought us Hiroshima and Nagasaki. One cannot imagine what the next chastisement (does anyone really believe that anyone is getting away with these evils?)will be.
written by Brad Miner, February 17, 2011
Mr. Saunders may wish to respond as well, but speaking for myself I must say I find highly unlikely Bill's claim that "the West is attempting to destroy Islam militarily" because of Islam's opposition to abortion, etc. Putting aside questions about the prudence of specific post-9/11 policy decisions, I see no evidence whatsoever that America and its allies fighting in Afghanistan or Iraq do so to enforce a pro-choice agenda.
written by Bill, February 17, 2011
Certainly there is not a sentient human being in the world who still believes, if they ever did, that the U.S. invaded Iraq because of WMDs and Afghanistan because of 9/11 terrorists. Every day the laughter grows as more evidence is leaked that the game was rigged. "Curveball's" admission is just the latest piece of evidence of rigging by the West.Now Colin Powell fears that his role will be revealed. However,when people like Perle and Bremer could boast that schools were being built in Iraq so that girls could receive an education and women would have rights,what rights do you think they were referring to? We were never told that we invaded Iraq so women would have rights, were we? But we did!Rights to end a pregnancy! Why else is Sec. Clinton travelling through the Philippines(heavily Islam),Indonesia (the largest Muslim population in the world)touting the societal benefits of contraception and abortion? What is delaying the settlement of the Israeli/Palestine issue, among others, but that the Palestinian birthrate is higher than the Israeli and the demographics would overwhelm a Jewish state.Why is the same pro abortion assault directed against blacks (some of whom are Muslim) and Latinos in this Country by the Obama administration? Muslims, as a group, have larger families. It is all a piece.

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