One of our most celebrated liberties in America is the freedom of conscience, or the freedom to hold and act upon conscientious judgments. It was the motivating factor in the Bush administration's strengthening of what are commonly known as "conscience" laws that protect physicians and other health care providers from discrimination if they refuse to participate in medical procedures that raise religious or other conscientious objections.
What sort of discrimination? In the past, health care providers who refuse to, say, participate in abortion procedures; have faced harassment, intimidation, and retribution in the form of denials of promotions and educational opportunities, and even the loss of employment.
Such laws have been in place since the 1970s, but the Department of Health and Human Services has done little to enforce them, and many providers remain unaware of their existence. Thanks to President Bush's efforts, these laws are now provided with real executive power. President Obama, however, plans to challenge the letter of the law by eliminating the very regulations that help enforce them.
In an announcement that gained little coverage from our ever-vigilant news media, the Obama administration proposed its intentions to rescind the measures for the purpose of eliminating the potential "ambiguity and confusion." Considering the fact that the Bush administration's new regulation clarified the laws and aided their enforcement, it could very well be that Obama's attempt to do away with the regulation is nothing but a thinly-veiled attempt to pander to the pro-choice movement. More disturbing, however, is how Obama's position on the matter raises questions about his party's commitment to religious liberty, especially when it conflicts with their agenda to promote ambiguous "reproductive rights."
But before we delve into the realm of politics, let us examine the reasoning behind opposition to the existence of conscience laws.
Conscience law critics often point to the responsibility that health care providers have to their patients, which they believe overrides any moral or religious beliefs they might espouse. When a patient is in need of a medical procedure, they argue, it is the duty of the physician or hospital to provide the procedure. Conscience laws unfairly disadvantage people who do not have easy access to a variety of medical institutions or practitioners because they may be denied assistance by providers who refuse to partake in procedures on religious or moral grounds.
Yet despite these claims, forcing physicians and hospitals to partake in actions they find morally reprehensible is not the answer because responsibilities to patients simply do not trump constitutionally-supported rights that hold a cherished place in the history of democratic thought. The Ninth Circuit Court of Appeals, in a 1975 ruling in the case of Taylor v. St. Vincent's Hospital, states, "If [a] hospital's refusal to perform sterilization [or, by implication, abortion] infringes upon any constitutionally cognizable right to privacy, such infringement is outweighed by the need to protect the freedom of religion of denominational hospitals 'with religious or moral scruples against sterilizations and abortions.'" Thus no rationale, no matter how sound, can justify overriding a right that is protected by the First Amendment's provision that forbids Congress from making laws that infringe upon the free practice of religion.
On certain issues, the Democratic Party appears to understand the sanctity of the freedom to express one's religious and moral beliefs, in particular those of minority religions. They have stood against measures they believe undermine what they believe should be a strict separation between church and state. Yet when it comes to religious beliefs that they disagree with personally, especially those of most Christian denominations, they have no qualms about creating government mandates that suppress the free expression of these practices, such as bans on school prayer and the removal of monuments displaying the Ten Commandments in public places. If, for instance, physicians of the Muslim faith were bringing up objections to performing procedures that contradicted their religious beliefs, I can't envision the ACLU fighting against measures that would prevent discrimination against these people. The Democrats' commitment to religious liberty is largely conditional on whose religious liberty is at stake.
Furthermore, the added dimension of reproductive issues like abortion complicates the matter. As his Senate record has shown, Obama is an ardent defender of abortion rights, going as far as sponsoring legislation that would allow for the killing of infants who manage to survive and are born alive despite abortion attempts. When combined with his party's inherent tendency to distrust Christian beliefs, it is obvious why he would want to rescind any measures that interfere with the alleged rights of patients to receive abortions on demand. In claiming to be "pro-choice" when it comes to having an abortion, Democrats are surprisingly anti-choice on the matter of doctors and hospitals choosing whether or not to provide them.
Unfortunately for Obama and the Democrats, repealing Bush's regulations will not eliminate the conscience laws that have remained on the books for over three decades. Yet it will be up to health care providers to defend themselves against discrimination based on their religious and moral beliefs, a protection that should be the responsibility of the branch of government that enforces the law.
If you would like to voice your objection to the President's efforts to rescind the Bush regulation, please visit www.ADoctorsRight.com before April 9.
Christie Pesavento is in Washington, D.C. and can be reached at cpesaven@nd.edu
The views expressed in this column are those of the author and not
necesarily those of The Observer.
