Hippocratic Hypocrisy

Abortion doctors [my apologies for the offensive term] are upset about the Supreme Court’s decision in Gonzales v. Carhart upholding the Partial-Birth Abortion Ban Act. Here’s a quote from the editor of the New England Journal of Medicine:

“With this decision the Supreme Court has sanctioned the intrusion of legislation into the day-to-day practice of medicine,” Dr. Jeffrey Drazen, editor of the journal, said in one of the commentaries, to be published on May 24. “Both health care providers and patients should be alarmed by the current degree of intrusion by our government into the practice of medicine and even more so by the apparent trajectory that it seems poised to follow in the near future,” Drazen added.

[Term withheld to protect sensibilities] doctors have now lost a little-used (the method prohibited by the Act accounts for less than 1% of all abortions annually) and unspeakably barbaric method of destroying unborn children. Rather than killing the child AFTER partially delivering it, they will now be required to kill it BEFORE delivery – or more accurately, a little earlier in delivery. For all Mr. Drazen’s complaints about the size of government and its overregulation of business, the PBA Ban is not a good example.

Here’s a better example for Mr. Drazen: The state of California asserts the authority to jail doctors who do not perform abortions. Yes, you read that correctly. In a lawsuit brought in January 2005 and still pending in the Northern District of California, State of California ex. rel. Bill Lockyer v. Gonzales, No. 05-00328, the Attorney General of California (now Jerry Brown), challenges the constitutionality of the Weldon Amendment, a federal law passed in 2004 that prohibits the federal government and state and local governments receiving certain federal funds from discriminating against healthcare workers and institutions that do not participate in abortions. The Center for Law and Religious Freedom represents the Christian Medical Association, American Association of Pro-Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants as Defendant-Intervenors in defending the Weldon Amendment.

The State of California contends that the Weldon Amendment prohibits it from enforcing a California law that, its Attorney General says, requires medical professionals and institutions to perform abortions in a “medical emergency.” Of course, the law then defines “medical emergency” to include any situation in which a woman’s “health” may be affected. It doesn’t define “health,” and under federal and California abortion caselaw “health” in the abortion context can include even “familial health.” So, if the Attorney General of California’s reading prevails, the law requires doctors to perform abortions in virtually any circumstance – under the threat of criminal prosecution and fines if the objecting doctor guesses wrongly and California thinks that the doctor’s refusal to provide the abortion risked the woman’s “health.” Simply put, without the Weldon Amendment's protection, any California medical professional who did not participate in any and all abortions would do so at the risk of criminal punishment.

Surely Mr. Drazen must be furious about this “intrusion of legislation into the day-to-day practice of medicine.” While I don’t know Mr. Drazen’s position on the rights of doctors not to be jailed for declining to participate in abortions, we do know what the California Medical Association thinks. The CMA filed a joint amicus brief with Planned Parenthood of California arguing for California’s position. So, the leading association of California doctors is putting its weight behind a law that would permit the state to criminally prosecute its own members. Attention California doctors: those are your membership dues at work.