President Obama Funds Overseas Abortions

A provision of the Foreign Assistance Act of 1961 prohibits the use of federal funds "to pay for the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions." In what has come to be called the "Mexico City Policy," President Reagan instructed the US Agency for International Development to comply with this statutory directive in 1984. President Clinton rescinded the policy, but President George W. Bush reinstated it.

Yesterday, President Obama again rescinded the Mexico City Policy, thereby allowing nongovernmental organizations working overseas to encourage women to have abortions and to lobby foreign governments to eliminate legal protections of unborn children.

Millions of Americans don't want their tax dollars used to facilitate the killing of babies in their mothers' wombs. President Obama subordinated those Americans' desires to the objectives of the pro-abortion organizations. This is not an auspicious beginning for a president whom many thought (erroneously, in my view) would be comparatively moderate on sanctity of life issues.

FRC's comment is here. National Right to Life comments here. US Conference of Catholic Bishops comments here.

Abortion Advocates Challenge Conscience Protection

According to the Washington Post, abortion advocates have filed three lawsuits challenging the newly final HHS rule protecting the consciences of health care providers.

Christian Legal Society and Fellowship of Christian Physician Assistants supports proposed rule protecting health care right of conscience

On Thursday, the Center for Law & Religious Freedom (CLRF), on behalf of the Christian Legal Society (CLS) and the Fellowship of Christian Physician Assistants (FCPA), submitted comments in support of a rule proposed by the Department of Health & Human Services "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law." Dep't of Health & Human Services, 73 Fed. Reg. 50279 (proposed Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88) (read the full text of the provider conscience regulation)

From the comments:

The pending regulations do not impose any new substantive obligations on HHS
grantees. Rather, they simply require grantees to certify that they comply with
the existing protections for medical professionals' rights of conscience. But as
the above illustrates, holding HHS grantees responsible for legal requirements
that they have ignored for decades is no small thing. The unfortunate fact is
that while federal law explicitly protects medical professionals from being
forced to perform or refer for abortions against their conscience, in practice
HHS grantees have been unaware of or ignored these laws. The pending regulations
are a necessary and important insurance that HHS grantees will not use federal
taxpayers' money to compel persons to perform abortions or provide abortion
referrals in violation of their consciences. Please issue these regulations at
the earliest possible date.

Would Government Penalties for "Too Many" Children Violate Religious Freedom?

Yesterday, USA Today published a column by Oliver "Buzz" Thomas entitled "Might Our Religion Be Killing Us?" Thomas answers the question with a "yes," arguing that the opposition of some religious groups to abortion and birth control and their encouragement of large families is harmful to the environment.

Thomas asks, "instead of providing tax breaks for having more children, shouldn't Congress be providing incentives for having fewer?"

What if the federal or state government imposed tax penalties upon couples who had, say, more than two children? Would this violate religious freedom?

It is not clear how courts would answer. At the outset, a court would consider whether having more than two children is the sort of "religious exercise" protected by the law. To be sure, having children is different, at some level, from prayer, evangelism, baptism, and communion. At the same time, many couples believe that having many children demonstrates obedience to God; even more believe that abortion and artificial birth control are sinful.

A courts would also ask whether the tax penalty is a legally cognizable "burden" on religious exercise. Assuming the court found that the tax penalty burdened religious exercise, it would then likely consider whether the burden was justified by some "compelling governmental interest." At this point, the government would likely invoke arguments about environmental Armageddon. In response, the couple with three kids would argue that the existence of their third child, by itself, will not bring about the ruination of the planet.

A claim under the Free Exercise Clause might not get very far, as the government would be able to argue that the tax penalty on "excess" children is a "facially neutral, generally applicable" rule that doesn't even implicate the Clause, as interpreted by the Supreme Court in Employment Division v. Smith. However, the Religious Freedom Restoration Act (for which Buzz Thomas actively lobbied) still applies to the federal government.

In any event, it is worth noting the irony of a liberal suggesting that the government should interfere with "reproductive freedom" by pressuring married couples to use birth control, have abortions, or abstain from sexual relations.

New England Journal of Medicine Editorial Debate on Health Care Right of Conscience

Discussing a study of controversial clinical practices associated with religious beliefs and physician rights of conscience published in the February 8, 2007 issue of the New England Journal of Medicine, (Curlin, et al., 356 N. Engl. J. Med. 565, 593-600 (2007)), readers of the Journal and the authors of the study engage in a revealing dialogue about conscience rights in the current issue. See "Religion, Conscience, and Controversial Clinical Practices," 356 N. Engl. J. Med. 18 (May 3, 2007), available here. The springboard for this discussion is the conclusion by Dr. Farr A. Curlin and his co-authors, of the University of Chicago, that "Patients who want information about and access to such procedures may need to inquire proactively to determine whether their physicians would accommodate such requests." A U. of Chicago colleague, Dr. Lainie F. Ross (with Dr. Ellen W. Clayton of Vanderbilt University), finds this conclusion "disturbing":

To impose the philosophy of caveat emptor is morally inadequate, given the differences in power and class between many physicians and their patients. Physicians must not be permitted to disavow responsibility on the grounds of conscientious objection; rather, such practitioners must choose careers in which their fundamental values do not interfere with the autonomy and well-being of patients.

Dr. Nada L. Stotland of Rush Medical College in Chicago concurs: "The onus is on our profession to confront the willingness of so many of our colleagues to substitute their personal values for the fundamental right of their patients to know their treatment options," she writes. Other correspondents compare the exercise of health care conscience rights motivated by sincerely held religious beliefs to the Roman Catholic Church's influence in post-Soviet Poland, which they claim "led to the systematic deprivation of services" and "de facto elimination of access to abortion, prenatal diagnosis, and most contraception" (Dr. Joanna Z. Mishtal and Dr. Wendy Chavkin of Columbia University); and to the Chilean government's current efforts to make emergency contraception available to minors as young as 14, where the Catholic Church's opposition and the exercise of individual physician conscience may present "difficulties" for the implementation of the policy. (Dr. Victor Zarate, University of York, U.K.)

For the defense, correspondents calling themselves "physicians in the 'high religiosity' category" remind readers that the dialogue is not just about "rights," but about doctors' respective responsibility to do moral good, especially to their patients. "If we truly believe that a given procedure violates patients' intrinsic human dignity, then our responsibility to our patients mandates that we not help them procure that procedure," say Dr. Patrick O'Connell of Raleigh, NC and Dr. Jacques Mistrot of Westchester Institute for Ethics and the Human Person. Dr. Kenneth Parsons of the University of Texas Health Science Center at Houston weighs in with anecdotal evidence of the dangers of vaulting patient autonomy over physicians' conscience. As an attending physician for patients with spinal cord injury during rehab, Dr. Parsons recalls, he heard many patients who were on life support voicing a request for physician assisted termination. Negotiations to "give life a try" were usually successful, he reports, and most of his patients found value in their lives after a frank dialogue about the patient's and the physician's respective values.

The authors of the study (along with Dr. Curlin, Ryan E. Lawrence, M.Div. and Dr. John D. Lantos), offer a thoughtful response:

If a judgment of conscience were merely a statement of personal preference or an expression of prejudice, the claims of Dr. Stotland and Drs. Ross and Clayton would be justified. But anyone who has been hounded by a sense that he or she has acted wrongly knows that is not how the conscience works. Those who act conscientiously do not "disavow responsibility" and "substitute their personal values for the fundamental rights of their patients." Rather, they are engaging in the struggle to know and do the right thing and to understand and fulfill their moral obligations in a particular situation. This task cannot be externalized or delegated. Indeed, acting conscientiously is the heart of the ethical life, and to the extent that physicians give it up, they are no longer acting as moral agents.

The authors heartily agree that the profession cannot permit all purported judgments of conscience, such as refusals to provide treatment based on a patient's race or sexual orientation, since such refusals "undermine the primary goal of medicine, which is to restore the health of those who are sick." But the practices about which they surveyed physicians, including abortion and terminal sedation, were not such examples, the authors note. Rather, they say, "These practices are controversial precisely because there is disagreement about whether they are consistent with the goals of medicine." Curlin, et al., conclude with a ringing defense of conscience rights:

Conscientious practice in a pluralistic world is messy even when peaceable. Yet the alternative is a society in which physicians are required to forfeit conscience in order to join the profession. Patients will not be well served by moral automatons who shape their practices, without struggle or reflection, to the desires of patients and the dictates of whatever regime is currently in power.

The entire correspondence, together with the original study report, are a fascinating glimpse into the thoughtful approaches to conscience rights being considered by practitioners and academics in medicine on both sides of the issue.

Our Laffy-Taffy, Elastic Justice

Pity poor Anthony Kennedy, who surely must be waking up to the realization that being the “swing vote” on the Court sometimes just means you can’t win for losin’. Witness his Gumbyesque stretch across the aisle of the Court in Carhart v. Gonzales. Pulled from the right by Justices Antonin Scalia and Clarence Thomas, to whom he had to cater in order to keep his majority from splintering into a very unsatisfying three-judge plurality (been there-done that), and from the left by Justice Ruth Bader Ginsburg, who ardently horsewhips him for “disrespecting” Planned Parenthood v. Casey and Roe v. Wade. How to bridge the gap?

Step One: Placate Scalia and Thomas by assuming, hypothetically speaking, Casey is controlling authority, without really treating it as authoritative. “The principles set forth in the joint opnion in [Casey] did not find support from all those who join the instant opinion.” Slip op. at 14. Reminds me of the old joke about the economist who, stuck on a deserted island with only a can of beans, solves the problem by pronouncing, "First, assume a can opener." When was the last time the Court took this approach? “Assume Miranda v. Arizona was correctly decided. If it were, the defendant should not be on death row today, since he was not properly advised of his constitutional rights.” Sadly, this kind of unmoored “blue skying” seems to be par for the course in abortion jurisprudence, so let it go for now. Step Two: Pretend that “Whatever one’s views concerning the Casey joint opinion” (why can’t we all just get along?), a “central premise” of Casey was that “government has a legitimate and substantial interest in preserving and promoting fetal life.” Uh-oh, here she comes. Whack! “You’re refusing to take Casey and Stenberg seriously!” (Dissent at 3 - paraphrasing here.) Whack! “You said in Casey and Stenberg that we won’t legislate ‘basic principles of morality!’” (Id. at 15.) Whack! “You’re showing your hostility to reproductive rights by using right-wing code words like "baby” and “abortion doctor!” (Id. at 19) (Never mind that such terms are by no means confined to the Right – see Casey Mattox’s blog on this.) Even Justice Kennedy’s Step Three – Apologize to the Left by allowing that the door is wide open to “as-applied” challenges to the Act in situations where the “health exception” pertains – is too little, too late. By the time Justice Ginsburg is through with him, she’s made it pretty clear that it’ll be awhile before the Left allows him off the downstairs couch.

Justice Ginsburg completely misses the point here, which is, of course, that Casey is whatever Justice Kennedy makes it to be as the defining Fifth Vote. She can pretend all she wants that Casey’s disembodied Platonic meaning hovers penumbra-like over the Court, but we all know – including her – that Justice Kennedy made Casey, and he has now largely unmade Casey. All the old rules are new again in abortion jurisprudence: The People, through their state and federal legislatures, can express moral outrage and protect women and the medical profession by outlawing or regulating abortion procedures, and will be given deference instead of a “zero tolerance” approach when they do so. Most importantly, perhaps, the “reproductive rights” crowd will no longer be able to bring facial challenges to strike down abortion regulations or notice and consent laws on flimsy and hypothetical circumstances implicating risks to a woman’s health; they will be put to the proof in every instance

Is Casey a Lemon? Will Casey’s main lot in life (or walking death) be to suffer periodic exhumation, doomed to shuffle about at night, frightening abortionists and the reproductive rights gang? Time - and presidential politics - will tell. But the Casey of the Roberts Court is not the Casey of the last Court. Can Roe be far behind?