Written Testimony of the
Secretariat for Pro-Life
Activities
United States Conference of Catholic Bishops
on the Health Care Providers'
Rights of
Conscience Act (HB 2711)
Submitted to the Committee on
Federal and State Affairs
Kansas House of Representatives
February
20, 2002
Thank you for providing us
this opportunity to submit written testimony on the Health Care Providers'
Rights of Conscience Act (HB 2711). The United States Conference of Catholic
Bishops is a nonprofit corporation organized under the laws of the District of
Columbia, whose members are the active Catholic Bishops in the United States.
The Conference advocates and promotes the pastoral teaching of the Bishops on
diverse issues, including access to health care, concern for the poor and
vulnerable, the protection of human rights (including religious freedom and
rights of conscience) and the sanctity and dignity of human life. As a
national conference we do not take formal positions on state legislation, but
we lend advice and assistance to local Bishops and state Catholic conferences
at their request. We have been asked by the Kansas Catholic Conference to
provide some background on the right of conscience on the federal and state
levels and to discuss growing threats to this fundamental right.
The Well-Established Legal
Tradition on Rights of Conscience
The basic principle that no
one ought to be forced to act in violation of his or her conscience is
recognized and protected by a vast body of laws. In federal law, this
principle is recognized in a number of provisions that protect conscientious
objection to a range of procedures, including abortion,(1) sterilization,(2)
contraception(3) and executions.(4)
This principle is also recognized
in the vast majority of states. After the Supreme Court handed down its Roe
v. Wade decision in 1973, prompting Congress to pass its first legislation
protecting the right to refuse to provide abortions, many states passed
similar laws. Today Kansas and almost all other states provide some protection
for the right of conscientious objection to involvement in abortion. Some
states also protect providers who object to other kinds of procedures,
including euthanasia, sterilization, artificial insemination, abortifacient
drugs and contraception. The State of Illinois has adopted a comprehensive
right of conscience law, under which the protection of physicians and other
health care personnel extends to any procedure "which is contrary to the
conscience of such physician or health care personnel." The State of
Washington provides comprehensive conscience protection to individual health
care providers and to religiously affiliated health care plans and facilities.
Inadequacies in Current Legal
Protection
While the principle of protection for conscience
rights is widely acknowledged, its implementation has been far from perfect,
creating a need for more comprehensive and forward-looking
legislation.
Most federal conscience protections apply only to specific
federal programs or are tied to the receipt of federal funds.(5) Their scope
is limited by this fact, and by the narrow range of procedures covered.
Though the majority of states acknowledge and protects rights of
conscience, their laws suffer from similar inadequacies. Most of these laws
are limited to abortion. Only a few states protect health care providers from
being forced to perform sterilizations. Few existing laws protect the full
range of individuals and institutions that may be involved in providing health
care in our increasingly complex health care system. Many states do not
protect the rights of conscience with respect to newly created technologies
such as cloning or embryonic research, or even current misuses of older
technology such as "surrogate" motherhood. States have also not addressed the
need to protect providers with respect to new threats to human life at the end
of life, such as physician-assisted suicide and euthanasia. As noted by one
commentator: "As the range of medical technologies continues to expand..., the
number of medical services involving potentially serious conflicts of
conscience is certain to increase."(6)
Finally, with new organized
threats to conscience on the horizon, it is especially important for states to
expand and strengthen their existing protections now. These threats have
become especially apparent in recent years in the fields of abortion and
contraception, as reviewed below.
Attempts to Force Health Care Providers to Perform Abortions and Other
"Reproductive" Services
Existing conscience laws are under
increasing attack by abortion rights activists, who want to require all health
care personnel and hospitals to provide "the full range of reproductive
services," including abortion. Not two years ago, there was a bold and
unsuccessful attempt at a meeting of the American Medical Association's House
of Delegates to win AMA endorsement for legislation requiring all hospitals to
provide a "full range of reproductive services."(7) Fortunately the delegates
ultimately defeated this misguided proposal, instead reaffirming AMA policy
supporting conscience which states that "neither physician, hospital, nor
hospital personnel shall be required to perform any act violative of
personally held moral principles."(8)
There have been other attempts to
force hospitals to provide abortions and other morally controversial services.
In 1997, for example, the Alaska Supreme Court ordered a private non-sectarian
hospital that had a policy against abortion to begin performing abortions.(9)
And in New Hampshire in 1998, after "reproductive rights"groups learned that a
newly merged hospital would no longer perform elective abortions and
sterilizations, they approached the New Hampshire attorney general to
challenge the merger. The New Hampshire attorney general issued an opinion
concluding on several grounds that the merger is subject to the law of
charitable trust and must be reviewed in probate court. Under the pressure of
the attorney general, the merger dissolved. Subsequently, abortion rights
groups made this case a model for one of their strategies to prevent mergers
if such procedures will not be performed or to force newly merged hospitals to
perform them.(10) The American Civil Liberties Union (ironically named in this
context) recently has published a report and advocacy kit aimed at requiring
all hospitals, including Catholic hospitals, to perform abortions and other
procedures which violate their conscientious convictions.(11)
Contraceptive Mandates and "Emergency
Contraception"
Attacks on conscience have not always been as
overt as these. A large part of the campaign to undo conscience rights in the
abortion context has proceeded subtly and incrementally and has trampled on
other conscience rights along the way. For example, to gain momentum for their
campaign, abortion rights activists have begun to erode the right of
conscience as it relates to paying for and providing contraception. Seventeen
states now have adopted, and two more—Massachusetts and New York—are actively
considering, mandates that require employers to provide insurance coverage for
contraceptives if they provide coverage for other prescription drugs.
Advocacy to mandate contraceptive coverage is noteworthy for a number
of reasons, not the least of which is the fact that in all but one state,
these mandates extend to so-called "emergency contraception." "Contraception"
is a misnomer in this case, because this regimen commonly operates not to
prevent conception but rather to ensure the death of an embryo after
conception by interfering with implantation in the womb.(12) It is thought
that "this mode of action could explain the majority of cases where
pregnancies are prevented by the morning after pill."(13) These efforts to
mandate "contraceptive" drug coverage are therefore attempts to obscure or
destroy the line between abortion and contraception, and to universalize
coverage of abortifacient drugs at the expense of conscience rights. Virtually
all the mandates enacted thus far provide either no conscience protection or
inadequate protection. Only one mandate safeguards religious and moral
beliefs. A dozen of the mandates contain provisions protecting religious
employers, but half of these define "religious employer" so restrictively that
the vast majority of religious organizations are not covered. In some cases,
the statutory language ignores the religious character of organizations such
as Catholic Charities and Catholic grade schools, treating them instead as
"secular" institutions with no conscience rights whatever.
National
groups advancing this campaign have had a federal contraceptive mandate
introduced in Congress as well. That bill not only fails to provide any
conscience protection (contradicting many federal laws that protect religious
beliefs and moral convictions), but would even override all existing
conscience protections in state contraceptive mandates, inadequate though many
of these already are.(14) This bill, too, would cover abortifacient "emergency
contraception." The movement to impose contraceptive coverage is really a
movement to mainstream abortion as a medical norm and chip away at the right
of conscience.
Mandating
"Emergency Contraception" in Hospitals
Conscience rights are
also at risk in bills to mandate the administration of "emergency
contraception" to rape victims. All Catholic hospitals observe ethical
directives which allow provision of emergency contraception to rape victims
when its mode of action would be contraceptive, i.e., preventing ovulation or
fertilization. Catholic hospitals, however, will not administer this drug as
an abortifacient, if conception has already occurred. A handful of states(15)
are considering or have considered specific mandates for emergency
contraception, which are designed to override the conscience rights of
Catholic hospitals and others.
Though only a few state legislatures
are considering such measures, an organized national effort—the Abortion
Access Project—is operating in twenty-one states(16) to garner support for
them. It is quite clear from the project's materials, including fact sheets
and resources on the project's website, that it has targeted Catholic
hospitals.(17) Mandating these abortifacient drugs is an incremental means to
requiring hospitals to perform abortions generally—indeed, the group's
materials on emergency contraception are included in a kit titled: "Designing
A Campaign To Increase Hospital-based Abortion Services."(18)
Why Are There Efforts to Undermine Conscience
Now?
With conscience laws on the books for nearly thirty years,
what accounts for these renewed efforts to undermine rights of conscience?
Part of the answer lies in a desperate desire by abortion proponents and
others to legitimize procedures that carry a stigma in the medical profession
and society at large. Legalizing abortion has not made it respectable, and few
doctors want to train in or perform abortions. Half of Americans consider
abortion equivalent to murder.(19) If abortion had to be provided in all
hospitals, this would lend the impression that it is basic health care. In
1995, when he called for intensified efforts to require abortion training for
all medical residents, abortion advocate Dr. David Grimes declared that
"making abortion training a routine part of any residency...will put abortion
back in the mainstream of medicine."(20)
The procedures covered in the
proposed Kansas legislation all have this dynamic in common – that is, none of
them is truly established on medical or ethical grounds as basic health care,
and so organized campaigns are required to make them so by requiring
everyone to be involved in them. All these procedures are morally problematic
or controversial; some of them are illegal in all states (infanticide,
euthanasia); some, though quite new, are already illegal in a number of states
(cloning, destructive embryo research); and none of them can claim to treat or
cure an illness.
In the case of abortion, renewed threats to conscience
can also be explained by the fiercely competitive and commercial nature of the
abortion business. To generate the most business, abortion clinics have
located in urban areas almost exclusively, where there is a large population
base. "Abortion clinics are no different from other speciality services, said
Dr. William Ramos, who runs an abortion clinic in Las Vegas. ‘In the entire
state of Nevada, there is only one Lexus dealer and only one Acura dealer', he
said." With abortion, Dr. Ramos continued, "there is less work and more
income." But to achieve the income that most abortionists expect, they must
remain in cities. "Clinic owners say they have little choice but to cluster in
cities—that is the only way they can find enough patients." Additionally, in
order to maintain their niche in the market, they often refuse to train other
physicians. "One doctor in Detroit....said that when he finished medical
school, trained in obstetrics and gynecology, he asked abortion doctors in the
area to train him. He was turned away."(21)
The reality is that public
sentiment against abortion has grown even stronger in recent years, and fewer
women are seeking abortions. Hence clinic owners have become even more
protective of the "business" they already have, and less willing to extend
their reach to rural areas where few women seek abortion. Rather than "setting
up shop" in such areas at a risk to their profit margin, they are advocating
that all hospitals be required to perform abortions.
Conclusion
Legislation that will
protect conscience by prohibiting discrimination against health care providers
is urgently needed to counteract these attempts nationwide to undo existing
protections. Respect for conscience has never been, nor should it be,
especially controversial. Even Planned Parenthood of Kansas and Mid-Missouri
recognizes the right of conscience in theory, saying that it is committed "to
ensure an environment which affirms...exercise of the individual
conscience."(22) The problem is that Planned Parenthood's respect for
conscience is partial and selective, and does not take account of the
conscience rights of individuals and institutions that disagree with its own
view of "reproductive health."
The proposed bill and other conscience
protections recognize a basic principle: no one, least of all a health care
provider committed to healing, should be forced to violate his or her
conscience by participating in procedures that he or she deems to be harmful
or morally wrong. Out of respect for religious freedom, concern for the
ethical integrity of the medical profession, and appreciation for the
diversity of our health system and our society, all should agree to help
prevent such coercion.
End Notes
- See 42 U.S.C. § 300a-7(b) (prohibiting public discrimination
against individuals and entities that object to performing abortions on the
basis of religious beliefs or moral convictions); 42 U.S.C. § 300a-7(c)
(prohibiting entities from discriminating against physicians and health care
personnel who object to performing abortions on the basis of religious
beliefs or moral convictions); 42 U.S.C. § 300a-7(e) (prohibiting entities
from discriminating against applicants who object to participating in
abortions on the basis of religious beliefs or moral convictions); 42 U.S.C.
§ 238n (prohibiting discrimination against individuals and entities that
refuse to perform abortions or train in their performance); 20 U.S.C. § 1688
(ensuring that federal sex discrimination standards do not require
educational institutions to provide or pay for abortions or abortion
benefits).
- See 42 U.S.C. § 300a-7(b) (prohibiting public discrimination
against individuals and entities that object to performing sterilizations on
the basis of religious beliefs or moral convictions); 42 U.S.C. § 300a-7(c)
(prohibiting entities from discriminating against physicians and health care
personnel who object to performing sterilizations on the basis of religious
beliefs or moral convictions); 42 U.S.C. § 300a-7(e) (prohibiting entities
from discriminating against applicants who object to participating in
sterilizations on the basis of religious beliefs or moral
convictions).
- See Treasury and General Government Appropriations Act, 2002,
Pub. L. No. 107-67, § 641, 115 Stat. 514, 554-5 (prohibiting health plans
participating in the federal employee health benefits program from
discriminating against individuals who, for religious or moral reasons,
refuse to prescribe or otherwise provide for contraceptives, and protecting
the right of health plans that have religious objections to contraceptives
to participate in the program).
- See 18 U.S.C. § 3597(b) (providing that no state correctional
employee or federal prosecutor shall be required, as a condition of
employment or contractual obligation, to participate in any federal death
penalty case or execution if contrary to his or her moral or religious
convictions).
- See 42 U.S.C. §§ 300a-7(b), 300a-7(c), 300a-7(e) (conscience
protections limited to entities that receive and individuals who work in
entities that receive federal funds under the Public Health Service Act,
Community Mental Health Centers Act, Developmental Disabilities Services and
Facilities Construction Act, or Developmental Disabilities Assistance and
Bill of Rights Act of 2000); Treasury and General Government Appropriations
Act, 2002, Pub. L. No. 107-67, § 641, 115 Stat. 514, 554-5 (protections
under only the federal employee health benefits program); 18 U.S.C. §
3597(b) (protects only prosecutors, correctional and other enumerated
personnel in the context of federal death penalty cases and
executions).
- Lynn D. Wardle, "Protecting the Rights of Conscience of Health Care
Providers," 14 J. of Legal Med. 177, 181 (1993).
- AMA House of Delegates, Annual Meeting, 2000, Resolution 218.
- See Proceedings of the 2000 Annual Meeting of the AMA House of
Delegates (American Medical Association, Chicago, IL), June 2000, at
447.
- Valley Hospital Association, Inc. v. Mat-Su Coalition for Choice,
948 P.2d 963 (Alaska 1997).
- Hospital Mergers and the Threat to Women's Reproductive Health
Services: Using Charitable Assets Laws to Fight Back, National Women's
Law Center, 2001.
- ACLU, "Religious Refusals and Reproductive Rights," January
2002.
- See Preven Emergency Contraception Prescribing Information,
http://www.preven.com/prodinfo/prescinfo.asp (visited 02/12/02)
- F. Grou and I. Rodriguez, "The Morning After Pill, How Long After?" 171
American Journal of Obstetrics and Gynecology 1529-34 (1994).
- Equity in Prescription Insurance and Contraceptive Coverage Act of 2001,
S. 104, 107th Congress (2001).
- Illinois, Florida, Maryland, New York, Wisconsin.
- See Abortion Access Project, "Hospital Access Collaborative
Newsletter" Fall 2001,
www.abortionaccess.org/AAP/campaigns/HAC/HAC_news_fall01.htm (visited
02/15/02).
- See Abortion Access Project web site, www.abortionaccess.org, for
Fact Sheets, "Catholic Hospitals and the Charity Myth" and "The Impact of
Catholic Hospital Mergers on Women's Reproductive Health Services," and the
manual "Designing A Campaign To Increase Hospital-based Abortion Services,"
especially Section C2, "Catholic Hospitals and Emergency
Contraception."
- Abortion Access Project, "Designing A Campaign To Increase
Hospital-based Abortion Services," available at
www.abortionaccess.org/AAP/campaigns/hospital/designing_a_campaign_to_increase.htm#The
Need To Increase (visited 02/11/02).
- NY Times/CBS Poll, N.Y. Times, Jan. 16, 1998, A1.
- Med. & Health, Feb. 29, 1995.
- Gina Kolata, As Abortion Rate Decreases, Clinics Compete for
Patients, N.Y. Times, Dec. 30, 2000, at A1.
- www.ppkmo.org (visited
02/12/02).
__________________________
Secretariat for Pro-Life Activities
United States Conference of
Catholic Bishops
3211 4th Street, N.E., Washington, DC 20017-1194 (202)
541-3070