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Conscience Protection at Risk

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 enforced. For 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 [1].

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.