National Press Club Event on Conscience Regulations TODAY

Today at 10:00 AM at the National Press Club, medical professionals who have experienced discrimination as a result of their exercise of their conscience will talk about their stories and urge the Administration to protect their rights and not rescind the HHS regulations protecting rights of conscience.

Freedom2Care, a coalition of organizations (including CLS) that support conscience rights in the medical profession, will also announce the results of 2 national polls gauging popular support for conscience rights and the existing HHS conscience protection regulations that the Obama Administration has proposed to rescind.

I will be in attendance and available to answer any questions about the lawsuits filed in Connecticut challenging the HHS regulations.

If you have not yet commented to HHS in support of the existing HHS regulations and in opposition to the proposed rescission of these protections you can do so through the Freedom2Care website. The deadline is midnight TOMORROW, April 9.

Tell the Obama Administration to Enforce Laws Protecting Conscience Rights

As previously noted, the Department of Health and Human Services has now moved to rescind the federal regulations prohibiting federal grantees from discriminating against medical professionals and institutions that decline to perform or refer for abortions or against medical students that do not wish to train in the performance of abortions. The proposed rescission has now been published in the federal register, triggering a 30 day period for public comment on rescinding this rule. Despite earlier media statements from unnamed HHS officials, the Administration has not proposed simply to "clarify" the rule, but have proposed completely throwing out the conscience protection rule altogether.

The conscience protection rule imposes no new obligations on federal grantees, but requires HHS grantees to certify that they will comply with three federal laws, the Church Amendments, Coats-Snowe Amendment, and Weldon Amendment. It also provides for a process by which a medical professional or institution may report their discriminatory treatment to HHS so that the agency may take action.

HHS previously explained that the rule was necessary, in part, because grantees and the public are unaware of these statutory protections - a fact confirmed in the lawsuits CLRF has been involved in defending medical conscience rights. HHS also explained that discriminatory treatment of medical professionals and institutions also threatened access to health care by driving pro-life medical professionals from the profession and causing faith-centered medical institutions (like Catholic hospitals) to close their doors rather than perform abortions.

The public, whether medical professionals, patients, or others interested, are invited to file public comments on the proposed rescission of the HHS rule. While stories of discrimination you or others have faced is helpful, ANY comment, even a few sentences, is helpful.

A website [http://www.freedom2care.org/] has been created to help facilitate complaints of discrimination and submission of comments to HHS in support of the existing regulations and in opposition to their rescission. You can also share the link with your facebook and twitter friends.

Comments are due by April 8, but do it today!

Breaking: Obama to Remove Anti-Discrimination Protections for Pro-Life Doctors

Per the LA Times - Pres. Obama will move to rescind the HHS regulation protecting medical professionals and institutions from discrimination on the basis that they do not perform, assist in or refer for abortions. No notice of rulemaking has been filed yet, but more updates will be provided when it is issued.

The regulations at issue, codified at 45 CFR Part 88, were enacted by the Bush Administration in response to recent evidence that federal grantees were unaware of or not complying with decades of federal laws protecting the rights of conscience of medical professionals. You can read more about the regulations here.

The Center currently represents the Christian Medical Association, Catholic Medical Association, and American Association of Pro-Life Obstetricians and Gynecologists as intervenors defending the regulations in three lawsuits brought in federal district court in Connecticut. You can read more about the lawsuits here.

A Philosophical Case for Conscience

Writing in the Public Discourse, Prof. Christopher O. Tollefsen presents a philosophical case for the protection of the right of conscience, discussing abortion and the pro-life physician:

In sum, under extremely serious circumstances, the state can forbid what is otherwise taken to be obligatory. But the state should never command that an agent do something that an agent takes himself to be forbidden from doing by an exceptionless moral norm, and, it seems, the state should make a considerable effort to protect its citizens from demands by others that they violate their conscience in this way. . . . Another straightforward consequence is that citizens opposed in principle to participating in abortion should not be compelled by the laws of the state to violate what they take to be exceptionless negative precepts. There can be no weak form of intrinsice malum in this domain.

Prof. Michael Stokes Paulsen legal memo on the consequences of the Freedom of Choice Act

Prof. Michael Stokes Paulsen of the University of St. Thomas School of Law has written a detailed 4000 word legal memorandum describing the consequences of the Freedom of Choice Act on Moral Accountability, a new website providing scholarly analysis of the Obama administration's policies as they relate to abortion and same-sex marriage.

From the conclusion:

While there is room for uncertainty or disagreement concerning a
few issues, in the main, FOCA’s legal effects are clear. FOCA would
invalidate nearly every state and federal law bearing on, or attempting to
influence, the exercise of a choice of abortion. FOCA would invalidate
nearly every state or federal law substantively disfavoring abortion in the
provision of benefits, services, and information. FOCA would invalidate
nearly every state or federal law protecting the conscience of medical workers
or religious hospitals from participating in abortion. FOCA would likely
invalidate nearly any state law prohibiting partial birth abortion. And
FOCA would entrench abortion rights against further meaningful legal challenge.

Advocates International moves to intervene in federal conscience case on behalf of Concerned Women for America and four pro-life medical asociations

Yesterday, attorneys for Advocates International moved to intervene in the federal lawsuit challenging the conscience regulation on behalf of the women's advocacy group Concerned Women for America as well as four pro-life medical associations, Christian Pharmacists Fellowship International, Care Net, Heartbeat International and the New Jersey Physicians Resource Council.

Read their press release and the motion to intervene and the supporting brief.

As discussed earlier, Center and ADF attorneys represent the first group of proposed intervenors Catholic Medical Association, Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

CLS Center and ADF attorneys move to intervene in conscience regulation lawsuit on behalf of pro-life medical associations

On behalf of pro-life professional medical associations, attorneys for the CLS Center for Law & Religious Freedom and the Alliance Defense Fund have filed motions to intervene in three lawsuits challenging a regulation that protects the medical professional right of conscience. View the press release here.

Last week, Planned Parenthood, a group of states including Connecticut, and the National Family Planning & Reproductive Health Association (NFPRHA) represented by the American Civil Liberties Union (ACLU) brought lawsuits seeking to invalidate a Health & Human Services regulation that protects doctors and other medical professionals from being forced to participate in abortions against their consciences.

CLS and ADF attorneys represent the Catholic Medical Association, the Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

The complaints, briefs in support of motion for intervention, and the proposed answers for the respective cases are available from the CLS Center:

Connecticut v. United States

NFPRHA v. Leavitt

Planned Parenthood v. Leavitt

The Center previously submitted comments on behalf of the Christian Legal Society and the Fellowship of Christian Physician Assistants in support of the enactment of this rule.

CLS and ADF attorneys also successfully defended against two challenges to the Weldon Amendment, which is one the three underlying statutes implemented by the regulation; that is, California v. United States (press release), and National Family Planning and Reproductive Health Association v. Gonzales (press release).

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.

Heritage Foundation Religious Freedom Memo to President-Elect Barack Obama

Ryan Messmore and Thomas M. Messner have authored "Protecting and Strengthening Religious Freedom: A Memo to President-elect Obama" on behalf of the Heritage Foundation.

The memo begins with a quotation from candidate Obama's much-discussed keynote address at the Call to Renewal conference back in June 2008. The quotation includes Sen. Obama's statement that "[s]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square."

Teasing out the natural implications of that statement, Heritage recommends that President Obama:

• "Protect the ability of faith-based social service providers to honor their religious identity and integrity by maintaining their right to make employment decisions based on religious ideals"
• "Ensure the availability of federal conscience protections that free physicians and other medical professionals to serve patients without violating their religious beliefs"
• "Call on all citizens to respect the ability of religious citizens to participate in public policy debates--including debates about marriage--without fear of intimidation and reprisal"

All three of these are excellent recommendations. We hope and pray that President-elect Obama and his advisors will follow them.

Illinois Supreme Court: Pharmacies Can Challenge Governor Blagojevich's Anti-Conscience Rule

The Illinois Supreme Court ruled yesterday that pharmacies that do not wish to stock Plan B, a drug used as an "emergency contraceptive" but which can prevent the development of an already fertilized egg, may challenge a rule issued by Governor Rod Blagojevich mandating that they fill such prescriptions despite their conscientious objections.

The plaintiffs challenged the rule in state court under state and federal laws protecting conscience, including the Illinois Health Care Right of Conscience Act, the Illinois Religious Freedom Restoration Act, and the First Amendment. The Illinois trial court ruled against the plaintiffs, holding that the case was not yet ripe for adjudication.

The Center, on behalf of the Christian Legal Society and Christian Pharmacists Fellowship International, and with substantial assistance from attorneys with the Columbia, SC firm, Nelson, Mullins, Riley & Scarborough, filed an amicus brief arguing that the case was ripe. The Illinois Supreme Court reversed the trial court, holding that the claim was indeed ripe for adjudication.

The case will now return to the state trial court for a decision on the merits of the Plaintiffs' claims. While the State Supreme Court's opinion does not weigh in on the merits directly, language used in the opinion may indicate that the justices believe that the pharmacies have a strong case. The court noted, "In our opinion, this is largely a case involving a question of law–whether pharmacists and pharmacies can be compelled to violate their consciences and religious beliefs inviolation of two Illinois statutes and the first amendment."

HHS Issues New Conscience Regs

The U.S. Department of Health and Human Services has issued final regulations protecting healthcare workers from being forced to perform or assist in abortions against their conscience. The full text of the regulations are available here.

The Center for Law & Religious Freedom filed comments on the proposed rules in September on behalf of the Christian Legal Society and the Fellowship of Christian Physician Assistants. The Center's comments pointed out that the proposed rule did not add any additional obligations to employers but merely required them to certify that they complied with federal conscience protections with which they have been required by law to comply for decades. A previous post on the Center's comment is available here.

Despite the fact that the regulations impose no new legal obligations on federal grantees, the Center's comment pointed out that the State of California, Planned Parenthood of California, the California Medical Association, and the National Family Planning and Reproductive Health Association had all evidenced ignorance of existing federal laws protecting the conscience rights of healthcare workers in two federal court cases challenging the Weldon Amendment. In both of those cases, California v. United States, and National Family Planning and Reproductive Health Association v. Gonzales, the Center for Law and Religious Freedom served as counsel for intervening pro-life medical groups defending the Weldon Amendment. The federal courts sided with the Center and the medical groups in both cases.

The new rule will take effect 30 days from tomorrow, Dec. 19. It will require federal grantees to specifically certify that they comply with the Church Amendment, Coats-Snowe Amendment to the Public Health Services Act, and the Weldon Amendment.

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.

HHS Conscience Regulations - Your Comment Needed by September 25

The U.S. Department of Health & Human Services has issued proposed regulations that would require most recipients of HHS funds to certify that they comply with federal laws protecting the conscience rights of pro-life medical professionals. For over three decades the Church Amendment has prohibited recipients of HHS funding from compelling employees to participate in activities that violate their conscience. Two other federal statutes, the Coats-Snowe Amendment to the Public Health Services Act, enacted in 1996, and the Weldon Amendment, an appropriations rider first enacted in 2004, prohibit federal and state governments and other recipients of certain federal funds from discriminating against medical professionals who do not perform or refer for abortions.

Despite these clear protections of the rights of conscience of pro-life medical professionals, those on the ground see a different story. Medical students and professionals report pressure to perform, be trained to perform, or to otherwise be involved in assisting with abortions. (Link is to website of the Christian Medical Association which CLS has represented in defending its members’ conscience rights.) Moreover, CLRF’s own experience defending the Weldon Amendment illustrated the utter lack of understanding that some of the largest grantees of federal funds (including the State of California and abortion advocacy groups) have of their own obligations not to discriminate against pro-life medical professionals. The existing federal laws prohibiting the rampant discrimination in the healthcare profession are simply being ignored. The Department’s proposed regulations are urgently needed in order to ensure that pro-life physicians, nurses, physician assistants, and others are able to remain in the practice and that the next generation of medical professionals can enter the profession with the confidence that they will not be forced to choose between their career and their conscience.

Please take the time to submit a brief comment encouraging Secretary Leavitt to issue the proposed regulations. The email address is consciencecomment@hhs.gov. You may also go to www.Regulations.gov, click on the link “comment or submission” and enter the keywords “provider conscience” to submit a comment there. THE DEADLINE FOR SUBMITTING COMMENTS IS THURSDAY SEPTEMBER 25, 2008.

As abortion advocates have launched postcard campaigns opposing the regulations, any comment is helpful, even if just a brief 1-2 sentences urging their adoption. Of course, if you can relate an example of your own or a friend or client’s discriminatory treatment for their exercise of their rights of conscience that would be particularly helpful. And please encourage others to do the same. Some additional points you may want to make are below:

• The Department should enforce existing conscience protections, passed with bipartisan support and on the books for as long as three decades.
• Discrimination against pro-life medical professionals does not expand access to abortion. It drives a critical segment of the medical workforce from the profession, diminishing access to medical care and increasing costs.
• Urge the Secretary to interpret the existing regulations to explicitly protect medical professionals from being forced to dispense or refer for chemical abortifacients like RU-486 and “Plan B.”

Analysis of North Coast Women's Care Medical Group v. San Diego County Superior Court: Part I

The Center recently filed its reply brief in the Doe v. California Lutheran High School case now pending in the California Court of Appeals. The Doe case presents the question of whether the Unruh Civil Rights Act prohibits private religious schools from using religious criteria when making admission and discipline decisions. Is it impermissible sexual orientation discrimination for a private religious school to expel students for engaging in homosexual conduct in violation of the school's code of conduct? Preparing the reply brief for Doe gave me ample opportunity to consider the California Supreme Court's recent decision in North Coast Women's Care Medical Group v. San Diego County Superior Court. I have a number of thoughts about the decision. This post is Part I of those thoughts.

At the outset, it is important to understand how overreaching the California Supreme Court's decision really is. When Benitez initially filed the case, the physicians raised a number of defenses. One of those defenses was that their refusal to perform the fertility procedure was constitutionally protected. The physicians asserted that their "'alleged misconduct, if any' was protected by the rights of free speech and freedom of religion set forth in federal and state Constitutions." The defense was specifically conditioned on the doctors' actions being a violation of the Unruh Civil Rights Act. If the Act was not violated, then the question of whether the rights of free speech and freedom of religion provided a defense simply was not presented.

The physicians also claimed that they refused to perform the fertility procedure not because Benitez was a lesbian but because she was unmarried. The doctors alleged that they would not perform fertility procedures for any unmarried woman regardless of sexual orientation. While the Act prohibits sexual orientation discrimination, it does not prohibit marital status discrimination. Thus, if the physicians could show that their refusal was based on marital status rather than sexual orientation, the Unruh Civil Rights Act was not even implicated and there was no reason to decide whether the rights of free speech or freedom of religion provided a defense.

The case reached the California Supreme Court on a "summary adjudication" of the physicians' constitutional defense. No determination had been made about whether the physicians' conduct constituted sexual orientation or marital status discrimination. The Court acknowledged that the reason for the physicians' refusal was an unsettled question and even said that the physicians could present evidence at trial demonstrating that their conduct was premised on marital status rather than sexual orientation. Yet the Court charged ahead to the constitutional issue and held that the physicians' rights of free speech and freedom of religion provided no defense to a charge of sexual orientation discrimination under the Unruh Civil Rights Act.

The only explanation for the decision is that the Court wanted to decide a case of "gay rights" versus "religion." Even if the issue was not presented in the case, the Court was determined to make that the issue.

California High Court Holds Physicians Subject to Unruh Act Despite Religious Objections

Today, the California Supreme Court held that the First Amendment rights of free exercise of religion and free speech do not exempt doctors from complying with the Unruh Act's prohibition on sexual orientation discrimination. A copy of the opinion can be found here.

For anyone interested, the Center filed an amicus brief in the case.

HHS Secretary Leavitt Blogs on Medical Professionals' Conscience Rights, Possible Regulatory Protections

A couple of weeks ago, Greg blogged about a New York Times article describing a leaked proposed rule from inside the Department of Health and Human Services. The rule, if adopted, would protect require recipients of federal funds to certify in writing that they adhere to the three federal statutes prohibiting discrimination against healthcare workers who refuse to perform abortions.

On August 9, Secretary Leavitt posted an entry on his blog explaining that the draft regulation would not, as the abortion lobby would like to frighten people into believing, "define contraception as abortion." He explained:

"The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers."

Today he has posted a new entry noting that "with the help of Planned Parenthood, my blog -- for the first time -- received more visits than my teenage son’s MySpace page." He goes on to explain that he did find one comment from Mary Gallagher, President of the National Family Planning and Reproductive Health Ass'n, helpful. Ms. Gallagher said that IF the regulation is adopted, medical professionals "get to pick and choose what they want to do." Secretary Leavitt responded:

"So, according to Ms. Gallagher’s ideology, if a person goes to medical school they lose their right of conscience. Freedom of expression and action is surrendered with the issuance of a medical degree.

There is something I’d like to point out to Ms Gallagher and the people she represents. It is currently a violation of three separate federal laws to compel medical practitioners to perform a procedure that violates their conscience.

Obviously, some disagree with the federal law and would have it otherwise, so they have begun using the accreditation standards of physician professional organizations to define the exercise of conscience unprofessional and thereby make doctors choose between their capacity to practice in good standing and their right of conscience. In my view, that is simply unfair and a clear effort to subvert the law in favor of their ideology.

This is not a discussion about the rights of a woman to get an abortion. The courts have long ago identified that right and continue to define its limits. This regulation would not be aimed at changing or redefining any of that. This is about the right of a doctor to not participate if he or she chooses for reasons they consider a matter of conscience. Does the National Family Planning and Reproductive Health Association believe we can protect by Constitution, statute and practice rights of free speech, race, religion, and abortion—but not conscience?

Is the fear here that so many doctors will refuse that it will somehow make it difficult for a woman to get an abortion? That hasn’t happened, but what if it did? Wouldn’t that be an important and legitimate social statement?

I want to reiterate. If the Department of Health and Human Services issues a regulation on this matter, it will aim at one thing, protecting the right of conscience of those who practice medicine. From what I’ve read the last few days, there’s a serious need for it."

Exactly. I encourage you to go to Secretary Leavitt's blog and urge the Secretary to issue the proposed regulation protecting the conscience rights of medical professionals. Were there any doubt that it is necessary to remind abortion advocacy groups receiving federal grants that they cannot force medical professionals to perform abortions against their conscience, the abortion lobby's own reaction to these draft regulations eliminates those doubts.

Proposed Rule Would Protect Conscience Rights

The New York Times reports that Bush Administration will reportedly propose a rule protecting the consciences of health care providers who, for moral and religious reasons, decline to participate in abortion.

The Times article quotes a representative of National Family Planning and Reproductive Health Association, whose hostility to conscience rights was apparent in its (unsuccessful) legal challenge to the Weldon Amendment, a federal statute that protects conscience rights. The Center intervened in that challenge on behalf of pro-life medical professionals.

Oral Argument Today in Health Care Conscience/Nondiscrimination Case

The California Supreme Court hears oral argument today in North Coast Women's Care Medical Group v. Superior Court, a case involving both health care rights of conscience as well as the conflict between religious freedom and nondiscrimination rules.

The dispute arose when Dr. Christine Brody declined to perform intrauterine insemination on Guadalupe Benitez on the ground that Benitez is unmarried. Benitez intended to raise a child with her lesbian partner. Benitez quickly located another doctor willing to perform the procedure. She eventually conceived and gave birth to a child.

Benitez sued Brody and her practice, claiming a violation of a California state forbidding sexual orientation discrimination in business establishments.

The CLS Center filed an amicus brief in support of Dr. Brody and her practice. More information about the case, including a link to the Center's amicus brief can be found here.

Loyalty Oaths and Religious Freedom

Both the LA Times and the Chronicle of Higher Education report that Cal State Fullerton fired a lecturer because she declined to sign an oath to defend the California and U.S. Constitutions "against all enemies, foreign and domestic." Wendy Gonaver, a Quaker and pacifist, refused to sign the oath, as it implied that she was willing to take up arms against America's enemies. She apparently indicated her willingness to sign the oath if she could accompany it with a written statement explaining her position, an offer the university reportedly rejected.

It is difficult to argue that this is justifiable incursion upon Gonaver's religious freedom. According to The Chronicle, the loyalty oath was added to the state constitution in 1952 to prevent communists from getting government jobs. Gonaver is not a communist; nor does the defense of California or the United States depend upon the involvement of Quaker teachers in combat.

Without question, anti-communist loyalty oaths are a product of a different era. But most of today's public universities have what amount to new loyalty oaths -- pledges not to offend others with controversial expression. The "nondiscrimination" policies most public universities apply to student groups are not really about stopping widespread invidious discrimination. Instead, these policies are about forcing dissenters to toe the line.

Universities defend the application of religion and sexual orientation nondiscrimination polices to religious groups not because they truly believe that some great injustice occurs when an a atheist or sexually active homosexual is not permitted to be the president of student groups like the Christian Legal Society. Instead, these universities simply cannot tolerate those who believe that certain religious propositions are objectively true or that homosexual conduct is sinful and immoral. The point of these policies is not so much to protect minorities, but rather to marginalize orthodox believers in an effort to reduce their influence and numbers.

Given that Gonaver is a Quaker, it is reasonable to assume that she will not commence litigation against university officials. If she did, one can imagine what the university would argue. In response to any Free Exercise Clause claim, the state would argue that the oath requirement is a "facially neutral and generally applicable rule," and thus immune to scrutiny under the Clause. Thanks in large part to the secular and religious Left, which bailed out on efforts to restore "strict scrutiny" to free exercise claims out of fear that such a restoration would undermine the homosexual "rights" agenda, Gonaver would have a tough time making a winning free exercise claim.

A claim under the California free exercise provision might not fare much better. In a case involving a Christian landlord charged with discriminating on the basis of marital status by refusing to rent an apartment to an unmarried, cohabiting couple, the California Supreme Court essentially said, "too bad -- no one forced you to be a landlord; you should go into some other line of work." One wonders whether the court would tell Gonaver to go into some line of work other than teaching.

Moral of the story: evangelicals are not the only ones hurt by the Left's subordination of religious freedom to "gay rights."

Ninth Circuit protects conscience rights of pharmacists

In the case of Stormans v. Selecky, as reported on Religion Clause the Ninth Circuit kept in place the preliminary injunction barring enforcement of challenged pharmacy board rules thereby protecting the constitutional rights of pharmacists who, informed by their religious or moral beliefs, are bound by conscience to refrain from distributing the abortion-inducing Plan B contraceptive. The case continues with oral argument on June 3 in Seattle.

Yesterday the CLS Center filed an amicus brief supporting the pharmacists on behalf of Christian Legal Society, Christian Pharmacists Fellowship International, Christian Medical Association, American Association of Pro Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants.