Matt Bowman: “Conscience protection for health care providers, who threatens the status quo? Bush or Obama”

By Matt Bowman
An attorney with the Alliance Defense Defense Fund

Is President Bush vastly expanding conscience protections for pro-life doctors, or is he merely enforcing the law as passed by Congress multiple times since Roe v. Wade, but which has not been enforced?  And, if President-elect Obama revokes those protections, will he be restoring a reasonable status quo, or clearing the way to force pro-life people out of the health care industry?

The mainstream media’s uniform slant on protecting pro-life doctors is that the regulations are novel and unprecedented.  The New York Times’ article last week typifies this propaganda, saying that the proposed HHS regulations are “sweeping new protections.” Breathless pro-abortion attorneys likewise declare that the regulations would eviscerate 40 years of precedent and “throw this entire body of law into question.”

On the Slate website today, self-described pro-life Obama supporter Melinda Henneberger echoes this assumption.  She actually writes a reasonable analysis showing that the proposed Freedom of Choice Act will not merely codify the Supreme Court’s abortion guidelines, but will eliminate all restrictions on abortion and force states and doctors to participate in it.  Yet, Slate is hesitant to publicize any unequivocal pro-life voice, so Ms. Henneberger concedes that the conscience-protecting HHS regulation overreaches in the same way that FOCA does.  “The president’s supporters say it merely implements existing legal protections for conscientious objectors (much like abortion-rights supporters say FOCA only codifies Roe).”

But are these commenters right?  Do the proposed HHS regulations radically change the law like FOCA would, or are they truly a mere enforcement of existing law?

Shortly after Roe, and after a lower court ruled that a Christian hospital had to participate in sterilization, a bipartisan Congress passed the first “Church Amendment,” (named after Senator Frank Church), 42 U.S.C.A. § 300a-7(c)(1).  The law says:

No entity which receives a grant, contract, loan, or loan guarantee under [various federal funding acts]may–

(A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or

(B) discriminate in the extension of staff or other privileges to any physician or other health care personnel . . . because he refused to perform or assist in the performance of [sterilization] or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions.

Congress recognized in 1973 what the abortion movement is implementing in state laws today:  once abortion is a “right,” access to it becomes a right, and participating in it becomes an enforceable duty.  Congress later passed many similarly worded laws, and these statutes remain on the books today.  A non-pro-life summary of these laws is available here.

But these laws don’t say how they will be enforced, and apparently there is no record of them ever being enforced.  The new HHS regulations do one simple thing:  they take these existing laws–the exact wording from those laws–and they require that federal funding recipients promise not to violate consciences as specified in those laws.  Read it for yourself here.

The regulations say, as simply as possible in regulatory language, that “law x requires conscience protection—so, fund recipients must promise they won’t violate that precise conscience protection.”  The regulations in no way expand the content of those laws.  They simply enforce them as written.

Commenters are therefore unjustified in suggesting that the HHS regulations would expand conscience protection law.  Ms. Henneberger is especially incorrect in suggesting that the HHS regulations are analogous to FOCA.  FOCA revolutionizes the law and strikes down thousands of restrictions on abortion, while the HHS regulations do not change the law in any way, though they do enforce against violations of the law that are ongoing.  The difference is that the conscience violations HHS will prevent are illegal, whereas the abortion restrictions FOCA will strike down have already been upheld by the courts.  You will not find this simple fact in media reports about the conscience regulations.

Why would the media, and even self-identified pro-lifers, characterize the conscience regulations as a sweeping expansion?  Perhaps they seek to have a storyline when the regulations are revoked.  President-elect Obama seems poised to eliminate these conscience-protecting regulations once in office, or perhaps not to enforce them.  He has placed pro-abortion former Senator Tom Daschle as the head of HHS.

This past election season, a lot of George-Soros-funded Christians not only campaigned for Obama but inexcusably told other Christians that he was the true pro-life candidate.  It remains to be seen whether these people will vigorously oppose Obama on the many actions he will take to massively expand abortion, or whether they will come to his defense.  The President-elect’s opposition to conscience protection will help strip pro-life doctors and pharmacists of their careers and livelihoods and ban pro-life people from all health fields.  If and when he takes such actions, some of the aforementioned Obama supporters might find it convenient to argue that the conscience-protecting HHS regulations were an unreasonable overreach in the first place.

By such warped reasoning, however, not only could this country have abortion on demand without the slightest restriction, but pro-lifers will be called unreasonable simply for asking not to be forced to help kill babies.  Perhaps even worse, the situation might be defined as the positively good, Christian, pro-life position to take.  Though shocking, this should not be completely surprising.  Describing a much more extreme circumstance, our Lord predicted that “a time is coming when anyone who kills you will think he is offering a service to God.” Jn. 16:2.