Matt Bowman: Coakley wrong on conscience rights of pro-lifers

ADF Attorney Matt Bowman

By Matt Bowman, Esq.
Alliance Defense Fund Legal Counsel

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Yesterday, Massachusetts Attorney General Martha Coakley, who is running for U.S. Senate, was asked about doctors who object to drugs that contracept or kill embryos. She said, “You can have religious freedom but you probably shouldn’t work in the emergency room.”

In fact, Coakley went so far as to say she would oppose a health care bill that allowed health care workers to object to providing not only abortifacients but any abortion:

Q: “Would you pass a health care bill that had conscientious objector towards certain prodecures incluiding abortion?”
Coakley: “. . . I would not pass a bill . . . to say that if people believe that they don’t want to provide services that are required under the law and under Roe v Wade that they could individually decide to not follow the law.  The answer to that question is no.”

General Coakley’s view is legally problematic in several ways. As Attorney General, she has sworn an oath to uphold the laws of the state of Massachusetts. Those laws unequivocally protect the right of Christian doctors to work in emergency rooms and every medical field according to their pro-life beliefs: “A physician or any . . . employee of a . . . health facility . . . shall not be required to participate in the medical procedures which result in such abortion or sterilization . . . . The refusal of any person who has made application to a medical, premedical, nursing, social work, or psychology program in the commonwealth . . . shall not form the basis for any discriminatory action against such person. Conscientious objection to abortion shall not be . . . used in any way to the detriment of the individual in any hospital, clinic, medical, premedical, nursing, social work, or psychology school or state aided program or institution which is supported in whole or in part by the commonwealth.” Mass. General Laws 112 § 12I.

In addition, multiple federal laws specify that entities receiving federal health funding are prohibited from discriminating against a health care worker because he or she has a religious belief against assisting abortion or other procedures, and medical schools may not deny degrees to pro-life students in “emergency room” medicine or any other specialization. See 42 U.S.C. § 300a-7; 42 U.S.C. § 238n; Section 508 of the Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2010.

General Coakley’s opposition to conscience rights is especially ironic in light of 42 U.S.C. 300a-7, which prohibits any government or hospital receiving federal health funds from discriminating against a health provider for objecting to abortion.  When that amendment passed 92-1 in the Senate in 1973, one of its enthusiastic bipartisan supporters was Senator Edward Kennedy (D-Mass).  On the Senate floor, Senator Kennedy declared that the amendment’s protection of health care workers from being forced to violate their religious beliefs advanced the core value of religious freedom in America:  “Congress has the authority under the Constitution to exempt individuals from any requirement that they perform medical procedures that are objectionable to their religious convictions.  Indeed, in many cases, the Constitution itself is sufficient to grant an exemption to protect persons from official acts that infringe on their free exercise of religion.”  Senator Kennedy expressed his support for the amendment “in order to give full protection to the religious freedom of physicians and others.”  119 Congr. Record 9602 (March 27, 1973).

So Attorney General Coakley opposes what the law says in 42 USC 300a-7 because of the constitutional “right” to abortion, whereas Sen. Kennedy enthusiastically voted for that law two months after Roe because of the constitutional right to religious freedom. Sen. Kennedy acted on his belief that religious freedom requires absolute conscience protection against threats to force people to do abortions legalized in Roe. Attorney General Coakley instead believes that Roe’s abortion mandate requires people to do abortions in violation of religious freedom or those people shouldn’t be allowed to practice medicine.

According to General Coakley’s attitude, religious freedom means the “freedom” for Christians to be driven from the caring professions altogether. Yet despite being opposed to the law, General Coakley’s view is consistent with the anti-conscience attitude of elite members of medical academia. In April 2009, the prestigious New England Journal of Medicine featured the comments of Dr. Julie Cantor who summed up their beliefs about “religious freedom”: “Qualms about abortion, sterilization, and birth control? Do not practice women’s health.” New England Journal of Medicine, Vol 360, Pg 1484.

What anti-conscience advocates ignore is that their views will deny reproductive health care to the millions of Americans who want pro-life doctors. Women will have no right to have their babies delivered by doctors who don’t do abortions, or to have their fertility cured by doctors who use only natural fertility methods, because those doctors won’t exist. And aging patients will have no right to a doctor who promises never to assist suicides. All such doctors won’t be able to get or keep their medical degrees or licenses because policy makers and elites will decide that they “probably shouldn’t work in” medicine.

Conscience attackers claim to support an absolute right of patients to receive any legal care. But these advocates and politicians don’t even believe their own rhetoric. They propose to deny the right of Americans to access medical care provided by committed pro-life doctors–care which is legal–because advocates would exclude all such doctors from medicine. Anti-conscience advocates believe in the right of patients to access death, but not anything else.   In their view, the only procedures Americans have a “right” to demand are the death-dealing procedures that anti-life advocates are themselves selling, or procedures being sold by their large campaign donors.

ADF is litigating several cases where, for example, a nurse was threatened with her job and license unless she assisted a late-term abortion, pharmacists may lose their licenses if they don’t dispense drugs that can kill embryos, a social work graduate student was expelled for refusing to approve homosexual behavior, and a counselor was fired for politely referring a homosexual client to another competent counselor.

The conscience battle is raging. Its advocates are unapologetically trying to strip away the laws that still exist to protect conscience rights, even laws which they themselves are supposed to be enforcing.