Beware the “Fake News” on Conscience Rights – Cutting Through the Abortion Distortion on Protections for Pro-Life Medical Professionals

You may have seen this past week's headlines from a variety of news outlets loudly proclaiming the death of conscience rights: “Trump’s ‘conscience rule’ for health providers blocked by federal judge.” “Second federal judge strikes down Trump’s ‘conscience protection’ rule for health care providers.” Both the headlines and, for the most part, the stories themselves give the impression that, as usual, the independent federal judiciary has had to come to the rescue of all that is good and true by thwarting the latest attempt by “Trump” and his “religious right” henchpeople to impose their troglodyte, Taliban-esque views on Americans who just want to be treated in hospitals and doctors’ offices without interference from small-minded religious fanatics.

But it’s fake news. The decisions of the U.S. District Courts in New York and Washington addressed a set of administrative regulations – housekeeping stuff – adopted by the U.S. Department of Health and Human Services earlier this year for how HHS wants to go about interpreting and enforcing pre-existing conscience protection laws. The laws themselves remain untouched and, as the New York court made clear, its decision leaves HHS at liberty to enforce existing conscience laws and to adopt rules governing how they go about doing that.

But what’s disturbing about the way this story is being reported is the almost palpable glee with which the supposed demise of conscience protection is being greeted, not only by the plaintiffs – the usual suspects, Planned Parenthood and state attorneys general of states rushing to absolutize the “right” to abort up to the moment of birth itself – but also by their cheerleaders in the news media. That should scare anybody who thinks it’s important that we protect the conscience rights of health care workers and others who object to being conscripted into the abortion-as-a-positive-good movement.

For one thing, the protection of conscience rights (the current journalists’ style books apparently require scare quotes, but we’ll dispense with them here because conscience rights really aren’t what’s scary in all this) is as old as and as American as the Nation itself. No need to mine the writings of the Founders for quotations, the protection of religiously informed consciences is the first right protected in the First Amendment of the Bill of Rights. If you go the National Archives and take a look at the Bill of Rights, we’re pretty sure you won’t find scare quotes around the words “the free exercise thereof” in Amendment I.

For another thing, the idea that specific laws and rules safeguarding the conscience rights of health care providers was something cooked up by the Trump Administration is laughable. Ever since what JFK-appointee Justice White called the Supreme Court’s “exercise of raw judicial power” in Roe v. Wade elevated what had previously been a matter of state medical regulation into a constitutional super power, bi-partisan majorities in Congress and state legislatures have sought to safeguard the right of people in this country who hold a dissenting view on when human life begins to opt-out of performing or assisting in the performance of abortions.

The New York court, in last week’s decision, identified five major pieces of conscience legislation that the HHS regulations at issue implicated. The first such provision – the so-called “Church Amendment” – was a bi-partisan law sponsored by liberal Democrat Senator Frank Church of Idaho in 1973 in response to Roe v. Wade. It’s arguably the most sweeping of the conscience protecting laws on the books, providing protection against discrimination to those who have conscientious objections to assisting in abortions or any other activities that are funded by the federal government. (Since practically all hospitals receive some form of federal funding, the Church Amendment’s potential applicability is vast.)

Then there’s the 1996 Coates-Snowe Amendment which provides conscience protections for health care entities and individuals in connection with abortion training. 1997 saw the passage of provisions incorporating conscience protections into Medicaid and Medicare Advantage programs. (Both Coates-Snowe and the Medicare/Medicaid conscience laws were signed into law by President Bill Clinton.)

The Weldon Amendment, in 2004, prevents federal, state, and local government agencies from discriminating against health care providers who conscientiously object to participating in abortions. And last but not least, the 2010 “Patient Protection and Affordable Care Act” – ObamaCare – also contains conscience-protecting provisions in the areas of abortion and assisted suicide.

That this parade of conscience-protecting laws, sponsored and adopted by liberal and conservative legislators, and signed into law by Democrat and Republican Presidents from Gerald Ford to Barack Obama, gets reduced to “Trump’s conscience-rule” – eek! – is really pathetic. (And we’re not even touching upon the broad protection of religious conscience contained in the Civil Rights Act of 1964 (Title VII), arguably the singular domestic achievement of LBJ and his Democrat-dominated 88th Congress.)

Two points to keep foremost in mind in the wake of last week’s court decisions (and who knows how many other similar decisions coming down the pike): neither case struck down any of the mosaic of laws protecting health care providers that have been on the books since the 1960s; and laws protecting conscience rights are something all of us can and should be – and until quite recently were –  proud of as a society founded on principles that recognized and protected pluralism and diversity of beliefs. People who are discriminated against, threatened, harassed, bullied, or fired because of their pro-life viewpoint still have the legal protections they had before these decisions.

As for the cases themselves, we don’t yet know if the government plans to appeal. There’s a good argument to be made that in striking down the HHS rules both the New York and Washington courts improperly ditched the usual deference courts are supposed to show toward administrative agencies’ efforts to carry out their Congressionally delegated mandates. The New York court, among other things, also seemed to incorrectly construe the relationship between Title VII’s protection of religious conscience and the subsequently enacted conscience provisions which, on their face, are not confined to religious-based objections. Nor is there any persuasive support for the court’s idea that laws like the Church Amendment are necessarily bound to be interpreted as providing no greater protection than Title VII.

But whether or not these decisions stand, HHS and other agencies – as well as individuals in many cases depending on the statute involved – remain free to enforce the conscience laws on the books. In fact, as supporters of the ACLJ know, HHS was enforcing these laws before the recent regulations were adopted (they never actually went into effect due to the legal challenges) and will continue to do so.

As we reported here, HHS is currently pursuing action against the University of Vermont Medical Center in response to an Office of Civil Rights Complaint that we filed on behalf of our client, a Vermont nurse who was forced into participating in an abortion procedure. That case is mentioned in several places in both the New York and Washington cases along with two other ACLJ cases, one on behalf of an Indiana nurse denied a job for being pro-life, and the other on behalf of a Hawaii crisis pregnancy center objecting to becoming the State of Hawaii’s mouthpiece for procedures the center objects to doing.

Here at the ACLJ, we’ve been engaged at the forefront of the fight to defend the conscience rights of health care workers for more than two decades.  Whether it’s doctors, nurses, pharmacists, or other health care workers, we’ve been the advocates before judges, juries, and administrative agencies for those folks on the front lines of the fight for conscience and religious liberty. Whatever the judicial fate may be of the current proposed HHS regulations or any future proposed regulations, we plan on staying in the fight. In fact, the ACLJ filed formal public comments with HHS in support of the conscience protection regulations at issue in these cases.

If you or someone you know in the health care field has ever been forced to choose between their deep beliefs about the sanctity of human life and their career, we urge you to contact us to see if we can help. We want to hear from you. Contact us with your situation at ACLJ.org/HELP.