Secretariat for Pro-Life Activities
United States Conference of Catholic Bishops
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.
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.
- 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).