Health & Human Services Moves to Protect Pro-Life Physicians' Right of Conscience

The Family Research Council quickly congratulated the federal Department of Health and Human Services last week after it proposed a new regulation to protect pro-life medical professionals "right of conscience," which is to say their right not to provide abortions or referrals to abortionists.

None of this will matter if pro-abortion Barack Obama is swept into office this January, as he will certainly reverse any pro-life regulations shortly after his arrival at the West Wing, as former President Bill Clinton did in 1993.

FRC Welcomes Proposal Protecting Conscience Rights of Health Care Workers
August 21, 2008

Washington D.C.- Today the U.S. Department of Health and Human Services (HHS) offered a new proposed regulation that increases awareness of, and complies with, three statutes on the books that protect federally funded health care providers' right of conscience.

Tony Perkins, President of Family Research Council released the following statement:

"It is imperative to protect the fundamental rights of all healthcare professionals to practice medicine in line with their moral convictions and ethical standards. Until now regulations had not been issued ensuring the implementation of numerous laws protecting conscience. The absence of regulations has resulted in confusion and a lack of awareness within the medical community regarding their conscience rights, leaving healthcare personnel vulnerable to discrimination.

"This proposal ensures that doctors and other medical personnel will retain the constitutional right to listen to their own conscience when it comes to performing or participating in an abortion. These regulations will ensure that pro-life medical personnel will not be forced to engage in the unconscionable killing of innocent human life. Protecting the choice not to participate in abortions is a huge win for religious freedom and the First Amendment.
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"The Family Research Council believes that the HHS proposal will help protect religious organizations and individuals. Secretary Michael Leavitt is to be commended for his courageous stance in protecting the constitutional guarantee of personal conscience and religious liberty.

"We look forward to filing comments in defense of final regulations enforcing over three decades of conscience laws."

Kansas Judge Holds Late-term Abortion Restrictions Constitutional

The Associated Press reported last week that Sedwick County (Kansas) District Judge Clark Owens declared a state abortion law Constitutional 10 years after its enactment, thus depriving Wichita late-term abortionist George Tiller of a defense in his pending criminal trial. The well-connected, church-going abortionist is a major contributor to Kansas political campaigns, and has emerged as something of a kingmaker there.

Judge Rules Kansas Abortion Statute Constitutional, Denies Request To Dismiss Case Against Late-term Abortionist Tiller

(AP) District Judge Clark Owens ruled Monday that a state law requiring an independent, consulting physician to approve some abortions after 21 weeks' gestation does not violate the U.S. Constitution or the Kansas Constitution, the AP/Wichita Eagle reports. Subsequently, Owens also denied a motion to dismiss a criminal case against abortion provider George Tiller.

Tiller is being charged by state Attorney General Stephen Six (D) with 19 misdemeanors for allegedly violating the state law. The law requires two physicians, without financial or legal ties, to agree that if a pregnancy continues, the pregnant woman will die or face "substantial and irreversible" harm to a "major bodily function." Prosecutors have accused Tiller of having an illegal financial arrangement with physician Ann Kristin Neuhaus, who provided second opinions on abortions he conducted in 2003.

Tiller's attorneys argued that the law creates an unconstitutional burden on a physician's right to practice medicine and a woman's right to obtain an abortion. They also argued that the law is unconstitutionally vague. Tiller's attorneys also argued that it violates the right to travel because of the requirement a woman be seen by two separate physicians in Kansas.

In a 35-page decision, Owens upheld the statute against each of the challenges.

Owens also denied a defense motion Tuesday regarding the number of jurors who will hear the case, according to the Wichita Eagle. State law limits juries in misdemeanor trials to six members, but Tiller's attorneys had requested 12.

Although no Kansas case has directly addressed the issue of six-person juries, Owens said a ruling by the U.S. Supreme Court in a Florida case was a factor in his decision.

"There is no need to interpret the Kansas Constitution any differently than what the Supreme Court interpreted the U.S. Constitution," Owens said.

Ashley Anstaett, a spokesperson for the attorney general's office, said Monday that prosecutors will move forward with the criminal case.

Owens set the trial date for the case for March 16, 2009.

Reaction

Dan Monnat, one of Tiller's lawyers, said, "We certainly respect the decision of the judge, but we hasten to point out that the decision on this one legal point does nothing to affect Dr. Tiller's innocence of the very technical charge still set for jury trial.

"Of course, Dr. Tiller is disappointed that the court did not take this opportunity to end his political prosecution and clear the huge roadblock that lies in the path of women who choose to exercise their right to get a lawful abortion in Kansas."

Mary Kay Culp, executive director of Kansans for Life, said the ruling is good news because Neuhaus was not independent of Tiller.

"I think the court has made a correct decision," Culp said. "There was no doubt in our minds that the law was constitutional, but you have to depend on judges to interpret these things."

Culp said Owens' decision shows that the 1998 law is valid, with "fail-safes" in place to prevent unwarranted late-term abortions, if officials will enforce them.

Troy Newman, president of the antiabortion group Operation Rescue, said that the ruling "vindicates our efforts to bring Tiller to justice.

"All along, we knew that it wasn't the law that was faulty, but it was Tiller's interpretation of the law that was faulty. This gives us a glimmer of hope that we could eventually see some shred of justice."

According to Monnat, abortion-rights opponents have been trying to intimidate and threaten doctors in Wichita who provide the required second opinion. "Tiller, however, will not be deterred by these people but rather will continue to work within the law as he has done for 30 years to help women get the health care they need and deserve," Monnat said, adding, "Tiller looks forward to having his day in court."

Pro-abortion Ethical Regime May Force Pro-Life Doctors and Pharmacists Out Despite Federal Law Protecting Conscience

There's more than one way to skin a cat. Pro-abortion activists are attacking pro-life obstetricians and gynecologists by revising professional ethics within the field, thus circumventing statutory protections that heretofore have protected the pro-life doctors' right to exercise conscience in this area. The Heritage Foundation reports that under the revised ethical system, doctors who refuse to perform abortions or provide abortion referrals will lose the certification that enables them to practice medicine at a hospital.

Forcing Pro-life Doctors Out of Baby Business?
By Daniel Patrick Moloney and Peter Reed

Should pro-life doctors and pharmacists be free to practice their profession according to the dictates of their consciences? Should a woman have the freedom to choose an obstetrician or gynecologist she trusts to provide care consistent with her beliefs?

Current federal law says yes. But many women may have that choice greatly restricted, and their doctors driven out of business, if a medical association is able to require that all doctors either perform abortions or make referrals for abortions.

In November 2007, the American College of Obstetrics and Gynecology (ACOG) announced that the ethical standards of the profession had changed. Its ethics committee stated that an ob/gyn who is unwilling to perform an abortion has an ethical duty to refer the patient to someone who will perform it. If the physician is unable to refer the patient in a timely manner, he would be required to perform the abortion himself.

This decision threatens the livelihood of pro-life doctors. Every ob/gyn who works in a hospital or clinic needs not only a license, but also certification that his skills are up to date and that he is aware of recent developments in the field. To be certified, he must follow the ethical standards of the profession, so under the new ethics policy a pro-life doctor risks losing his certification if his pro-life convictions don't allow him to perform or cooperate in an abortion. And if he loses his certification, a hospital or clinic won't let him deliver babies there.

The American Association of Pro-Life Obstetricians and Gynecologists has labeled the decision “a raw power play to cripple, and ultimately eliminate from practice, those doctors who hold a conscience conviction on the sanctity of human life.” Besides forcing current ob/gyns out of the profession, the policy would make any bright young pro-life student think twice about going to medical school for obstetrics or gynecology.

Federal law protects doctors from discrimination for being pro-life. Any hospital or clinic that receives government funds (and most do) must allow a qualified pro-life doctor or medical student to practice his profession. So any hospital or clinic that rejects a doctor who lacks board certification could find itself in violation of federal law, and unwittingly be at risk of losing its government funding.

In response, Health and Human Services (HHS) Secretary Mike Leavitt sent the American Board of Obstetrics and Gynecology, the professional agency that provides continuing certification for doctors, a letter strongly urging the agency not to base its licensing requirements on the ACOG ethics opinion. The Board was evasive: It claimed that whether a physician is pro-life has no bearing on his certification, yet it did not explicitly reject the ethics opinion. Nor did it rule out taking action against “unethical” pro-life doctors in the future. ACOG announced simply that it would review the ethics committee opinion. In June, Leavitt sent a second letter requesting more decisive action. But as things stand, a pro-life ob/gyn still risks losing his certification.

Even if the Board and the College continue to evade the communications from HHS, Leavitt could act to help the doctors. He should send a letter to all federally funded hospitals and clinics that employ ob/gyns, explaining federal law and how the new certification policy conflicts with it.

To further clarify current law protections, HHS is reportedly reviewing a draft regulation to ensure that federally funded hospitals and clinics protect the conscience rights of health care professionals. Current law protects doctors, nurses, pharmacists and other health workers against being forced to violate their moral convictions.

Developments in the field -- such as the "morning-after" pill -- have made once abstract distinctions about the moment life begins immediately relevant. Many people believe that life begins when an egg is fertilized, and that the “morning-after” pill constitutes abortion. Other people believe that conception occurs only when a fertilized egg implants in the uterus, so that the “morning-after” pill is simply “emergency contraception,” because it prevents “conception” as they define it. The HHS regulation deems each view reasonable, and protects both views. Rather than imposing a bureaucratic definition, it defers the matter to the conscience of the health care provider -- as federal law has to date.

Federal law has upheld and should continue to uphold the conscience rights of medical professionals. Indeed, it was designed to combat the very kind of discrimination the ACOG ethics opinion recommends. Bureaucracy shouldn’t get in the way of qualified professionals being allowed to practice conscientiously and patients being able to choose a health care provider with similar convictions.

Daniel Patrick Moloney, Ph.D., is Senior Policy Analyst in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation. Peter Reed, a senior at Patrick Henry College in Purcellville, Va., is a Heritage intern.