Unconscionable: Threats to Religious Freedom and Rights of Conscience in the Abortion Debate

While preparing for what she thought was a routine procedure for a patient following a miscarriage in 2009, nurse Cathy DeCarlo learned that the procedure was actually going to be performed on a living child at twenty-two weeks gestation. DeCarlo spoke with a supervisor at her hospital, who claimed that the mother could die if DeCarlo did not assist in the abortion. DeCarlo was told that if she refused, she would be charged with insubordination and patient abandonment.

DeCarlo, in tears, gave in to her supervisor’s demand because her family could not afford for her to lose her job and nursing license, but she did so in protest. She was pressured into assisting a doctor in performing a dismemberment abortion on the child, later describing her experience as being “like something out of a horror film.” Her supervisor’s claim that the life of the mother was in immediate danger turned out to be false.

DeCarlo’s case is less of an anomaly than one would hope. Developments earlier this year in the nation’s capital threaten to further undermine religious freedom and conscience rights for healthcare workers and others who might be coerced to participate in or facilitate abortion. The incoming Trump administration, working with a Republican-controlled Congress, will, however, have an opportunity to act quickly to reverse some of these developments and implement policies to enshrine new conscience protections in law.

From Culture Wars to Conscience Wars

In a June 21 letter, the Obama administration stated that it would not act against a California policy requiring all health insurance plans in that state to cover elective abortions. The Weldon Amendment prevents federal agencies and state and local governments receiving funds from the Department of Health and Human Services (HHS) from discriminating against healthcare entities opposed to abortion, but the Obama administration will not seek to apply the law in this case. One week later, on June 28, the Supreme Court denied review in Stormans v. Wiesman, a dispute regarding the ability of Washington pharmacists with conscientious objections to abortion-inducing drugs to decline to stock such products at their stores.

Then, on July 13, the US House of Representatives passed the Conscience Protection Act. The legislation, which has passed both houses of Congress, would prevent government from discriminating against healthcare providers who object to participating in the practice of abortion. The new president should sign this law and should reverse the Obama administration’s decision not to enforce the Weldon Amendment in the case of California’s discriminatory healthcare policy.

These events highlight continuing developments in the abortion debate. Our society continues to debate whether and when abortion should be legally permitted and whether to force pro-life individuals and institutions to participate in or facilitate abortions.

Respect for religious liberty and conscience rights has long been a hallmark of the American political tradition. Just months after the Supreme Court decided Roe v. Wade in 1973, Congress passed the Church Amendment, legislation that protects abortion-related conscience rights of both individuals and institutions. Only two decades ago, a unanimous House and a near-unanimous Senate voted to pass the Religious Freedom Restoration Act, establishing a framework for the protection of religious beliefs from undue government coercion. Twenty-three years later, however, the question of religious liberty and conscience protection, especially but not only in the abortion arena, has become one of the most contentious issues of our day.

My recent paper for the Charlotte Lozier Institute presents a survey of challenges reflecting this transition from culture wars to conscience wars. At risk are not only the religious liberty and rights of conscience of pro-life individuals and institutions, but also the goods that a robust understanding and protection of religious liberty and conscience rights provide for society as a whole.

Cases Involving Healthcare Workers

One area of conflict involves situations in which pro-life individuals or institutions are coerced—either by the government or employers—into participating in or otherwise facilitating abortion, or facing penalties for refusing to do.

This is what was at stake in Stormans. Christian pharmacists in Olympia, Washington, objected to a 2007 regulation mandating that they stock emergency contraceptives. Believing that these drugs can act as abortifacients—the FDA labeling on such products typically notes that they can prevent the implantation of an embryo—the Stormans family traditionally did not stock them in their pharmacy. If a customer requested them, the Stormans would refer them to any of the more than thirty other pharmacies within five miles of their store that do stock such products.

Not only do the 2007 regulations require that the Stormanses stock emergency contraceptives, they also forbid them from referring patients to other pharmacies to purchase such products because of their moral or ethical objections. These requirements made Washington the only state to forbid pharmacists from declining to fill a prescription on religious or moral grounds while also forbidding conscience-based referrals.

The Supreme Court’s decision not to review the case allows a decision against the Stormanses by the Ninth Circuit to stand. It also prompted a lengthy and unusual dissent from Justice Alito, joined by Chief Justice Roberts and Justice Thomas, in which he lamented, “Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”

In another case, two students who were interested in applying to Vanderbilt University’s nurse residency Women’s Health track discovered that the application required them to promise to assist in abortions. An acknowledgment letter included in the application stated, “If you are chosen for the Nurse Residency Program in the Women’s Health track, you will be expected to care for women undergoing termination of pregnancy.” The letter added, “If you feel you cannot provide care to women during this type of event, we encourage you to apply to a different track of the Nurse Residency Program to explore opportunities that may best fit your skills and career goals.”

Fortunately for these students, Vanderbilt revised its application materials to better respect the conscience rights of prospective medical students after a complaint filed with HHS by Alliance Defending Freedom arguing that Vanderbilt—which receives federal funding—was in violation of the Church Amendment by discriminating against medical students on the basis of their willingness to provide abortions.

Despite the happy ending in this case, the fact that medical programs around the country may be discriminating against pro-life individuals in their application process is alarming. If such practices are not brought to light, the result may be that, over time, patients will be unable to find pro-life medical professionals in their area. For individuals who value being cared for by medical personnel who believe that all human life is inherently valuable, this is a gloomy prospect.

Cases Involving Pregnancy Resource Centers

Another area of conflict involves pregnancy resource centers. These conflicts center around state or local laws that require pregnancy resource centers to communicate certain messages to their clients.

The most recent example comes from California, where the Reproductive FACT Act requires pregnancy centers to disseminate to all clients a notice stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion. They must also provide the phone number to a county social services office where a client can obtain an abortion paid for by the state.

The National Institute of Family and Life Advocates (NIFLA), a national organization with 111 pregnancy help center affiliates in California, objected to the law because it imposes government-compelled speech on the pregnancy centers in ways that undermine the centers’ message. In response to a law that requires pro-life pregnancy help centers to serve each woman who comes through their doors with a notice alerting her to the availability of abortions paid for by the state—along with a phone number that she can call to arrange an appointment for an abortion—the Ninth Circuit on October 14 denied the pregnancy centers a preliminary injunction. NIFLA will surely lose its case when it is argued in full, and at least three other cases involving pregnancy resource centers objecting to the same law will see the same fate.

In contrast to the defeat for pregnancy resource centers in California, similar laws compelling speech have been struck down in New York, Texas, and Maryland. A key difference leading different courts to different conclusions in these cases is the question of which standard of scrutiny—strict or intermediate—to apply to the policies in question. This suggests that the constitutionality of policies such as these targeting pregnancy resource centers may ultimately need to be adjudicated at the Supreme Court.

Cases Involving Insurance Coverage

Under the federal Affordable Care Act and the HHS mandate, employers are required to provide employee health insurance plans that cover contraception and abortion-inducing drugs. Everyone is familiar with the burden these laws place on religious freedom and rights of conscience, documented in high-profile cases such as Burwell v. Hobby Lobby Stores, Inc. and Zubik v. Burwell.

However, similar threats have also emerged under state law. Recent cases in California and New York reveal further violations of religious liberty in the arena of health insurance coverage, where churches and religious organizations—including those who typically qualify for exemption from the federal HHS mandate—are being forced to cover abortion in their employer health insurance plans.

In California, the Department of Managed Health Care (DMHC) announced in 2014 that all group health plans in the state that did not cover all legal abortions had to begin offering such coverage. Their argument was that health plans must cover basic healthcare services and abortion is basic health care. The new requirement did not provide exemptions for employee health plans offered by churches and religious employers.

Several churches filed lawsuits seeking relief from the mandate, arguing that the state mandate was forcing them to violate their religious beliefs by providing abortion coverage in their group health plans. These cases are not yet resolved, although the Obama administration’s decision not to enforce the longstanding Weldon Amendment has robbed the churches of a sure defense—for now.

In New York, some religious organizations recently discovered that they had unknowingly been covering elective abortions in their employer insurance plans under two state abortion mandates, and filed suit in state court.

The New York state authority responsible for enforcing health insurance regulations approved language on April 26 that states that health insurance plans must cover therapeutic and non-therapeutic abortions. When groups such as the Diocese of Albany objected to this language, they were made aware that they had already—unknowingly—been providing coverage for elective abortions under different language regarding “medically necessary” outpatient surgery, in which abortion was included as a medically necessary procedure required to be included in health insurance plans.

What Should Be Done?

These cases revolve around the tension between some people’s conscientious refusal to provide, perform, facilitate, tacitly approve of, inform about, or refer for abortions or abortion-inducing drugs, and the ability of others to obtain those services. But the tension goes deeper than that. Conflicts do not arise because of an inability on the part of those who seek such products and services to access them. Instead, the root of the conflict is a desire on the part of the ostensible victors of our culture wars to enforce the new orthodoxy mercilessly. They brook no dissent, but in doing so they betray their unease.

Waging war against those who object to abortion does little to improve access for women seeking abortions, damages the integrity of those who object, and harms civil society. Yet the legal landscape promises to become studded with more cases such as these in the future, especially in the states that are not controlled by Republican majorities following the recent election. While the Supreme Court’s decision not to hear Stormans is, in Justice Alito’s words, an “ominous sign” that gives those who value religious freedom “cause for great concern,” principled action by legislators can provide substantial protection for the conscience rights of those who object to the practice of abortion. The Trump administration can also immediately reverse actions undertaken by the Obama administration that discounted conscience rights in the healthcare arena.

It is more important than ever that the federal government make the Conscience Protection Act law, enforce the Weldon Amendment and similar legislation designed to prevent entities receiving federal funds from discriminating against those who object to abortion, and ensure that all state-sponsored medical schools and residency programs respect the conscience rights of applicants and participants. In this way, we can help ensure that individuals with pro-life views are not driven out of the medical profession.

The opinions expressed here are the author’s own and do not necessarily reflect those of the Institute.