January 22nd, forty-three years ago, the United States Supreme Court recognized that medical professionals and others have a right not to assist in abortions in violation of their conscience.
Yes, I do have the date right. I’m talking about Roe v. Wade and Doe v. Bolton. While those cases held, wrongly, that women and their doctors have a fundamental constitutional right to kill an unborn child, they also recognized, as important predicates to those decisions, the right NOT to participate in abortion in violation of one’s conscience.
The Supreme Court will hear oral arguments soon on whether the Obama Administration can force religious nonprofits and Christian universities, like the Little Sisters of the Poor and Geneva College to give the employees and students access to contraception and abortifacients. And the Administration continues to refuse to enforce federal law prohibiting California from forcing every health insurance plan, even those of churches, to cover elective abortion. These are just the latest examples of attacks on these well established rights of conscience in ways even the authors of Roe and Doe did not envision.
Even at the time of Roe, some were concerned that legalized abortion would lead to compelled participation in abortion, a concern that was not misplaced as ACLU attorneys were working in Montana to force Catholic hospitals to perform sterilizations. The Supreme Court acknowledged but dismissed that concern, holding only that “the attending physician, in consultation with his patient, is free to determine … the patient’s pregnancy should be terminated.” Turning aside worries of compelled participation in abortion the Court cited favorably the resolution of the American Medical Association House of Delegates stating:
RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.
Similarly, in Doe v. Bolton, while the Supreme Court struck down some parts of a Georgia abortion law, it left standing a provision that allowed any medical professional or hospital to decline to participate in abortions, saying that this provision was an “appropriate protection to the individual and to the denominational hospital.” Thus, in the seminal abortion decisions that President Obama and the abortion industry celebrate last weekend, the same Court acknowledged the right NOT to assist in abortions in violation of conscience.
To be absolutely sure, however, the U.S. Congress passed the Church Amendments, turning back ACLU efforts to treat Catholic hospitals receiving Medicare funds as public hospitals and force them to perform sterilizations (and ultimately abortions), and prohibiting recipients of certain federal funds from requiring medical professionals or any person to participate in abortions, sterilizations, or other procedures in violation of conscience.
This was so uncontroversial it passed with only a single vote against in either house – a vote total unthinkable even for a bill to honor mom and apple pie today. In fact, Senator Ted Kennedy, no less, spoke in favor of the law on the floor of the Senate, saying that it protected the constitutional right not to participate in abortion and he supported the “full protection to the religious freedom of physicians and others.” In 1973, as the opinions reflect, there was no doubt that whatever supposed right the constitution gave to women and doctors to participate in abortions, it certainly protected the right not to participate in abortions or other medical procedures that violated one’s conscience.
And yet, the Obamacare HHS Mandate requires employers, regardless of their convictions, to provide abortion-inducing drugs to employees through their health plans. ADF has been on the forefront of defending the freedom of conscience of employers, and, by God’s grace, has a 19-4 winning record against the HHS Mandate. Of the four cases we've lost, two, Geneva College v. Burwell and Southern Nazarene University v. Burwell will be reviewed by the Supreme Court in March in a consolidated case including five other Courts of Appeals losses. That includes the Little Sisters of the Poor v. Burwell, a case involving a group of nuns dedicated to serving the elderly who risk being fined to the point of being unable to continue their work if the Mandate is enforced.
Our hope is that the Court will view these cases in a similar light as Conestoga Wood Specialties v. Burwell, where the Justices decided in favor of freedom of conscience.
Roe and Doe, as bad as those decisions are, reject the Administration’s claim that a woman’s “right” to contraception and abortifacients justify the federal government compelling Christ-centered organizations to violate their conscience by providing these for them. When you hear abortion industry supporters rely upon those decisions to justify the HHS Mandate’s assault on conscience or even California’s effort to force churches to pay for abortions from the offering plate, don’t believe it. Compared to the government’s attacks on conscience today, even Roe itself looks conservative.
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