CATHOLIC HEALTH CARE AND THE RIGHT OF CONSCIENTIOUS OBJECTION

1. CATHOLIC HEALTH CARE AND THE RIGHT OF CONSCIENTIOUS OBJECTION A FOCUS ON FOCA

2. Catholic hospitals may come under increasing governmental pressures to provide a full range of reproductive services including sterilizations and abortions in violation of the Ethical and Religious Directives.

3. These pressures may result from new conditions being placed on access to government funding, limitations on participation in government programs, or mandates to provide a full range of reproductive services.

4. The Protection of Conscience in the Aftermath of Roe v. Wade • In the 1970s, after Roe v. Wade was decided, it was feared that Catholic hospitals would be forced to provide abortions and sterilizations because of their receipt of federal funding under various programs. • In October of 1972 an injunction was issued by a U.S. District Court in Montana in a § 1983 action to require a Catholic hospital to permit a physician to perform a tubal ligation on a patient in the hospital. Taylor v. St. Vincent’s Hospital, Billings, MT, c-1090, U.S. District Court, Montana (October 27, 1972).

5. Shortly after Roe was decided Congress adopted the Church Amendments- the original conscience clause legislation –to protect institutions with a conscientious objection from being forced to provide these procedures because of their receipt of federal funds.

6. Over the years, additional state and federal laws have been enacted to protect institutions and individuals from being coerced to participate in abortion and sterilization

7. The Ethical and Religious Directives • the Ethical and Religious Directives for Catholic Health Care Services is a set of norms adopted by the United States Conference of Catholic Bishops. • They are now in their fourth edition and most recently revised in 2001.

8. The enactment of the Church Amendments facilitated the widespread adoption of the 1971 version of the Ethical and Religious Directives by United States bishops because in order to take advantage of their protections, it was necessary for Catholic hospitals to clearly articulate their moral objections to abortion and sterilization.

9. Directive 70 of the 2001 ERDs , provides: “Catholic health care organizations are not permitted to engage in immediate material cooperation in actions that are intrinsically immoral, such as abortion, euthanasia, assisted suicide, and direct sterilization.”

10. In addition, the footnote to Directive 70 states: “While there are many acts of varying moral gravity that can be identified as intrinsically evil, in the context of contemporary health care the most pressing concerns are currently abortion, euthanasia, assisted suicide, and direct sterilization.”

11. The ERDs are not effective in a particular diocese until they are promulgated by the local bishop and the local bishop is responsible for their enforcement in his diocese. • All U.S. Bishops have adopted the current version of the ERDs.

12. In the case of Catholic hospitals, the principles concerning material cooperation would make a requirement that Catholic hospitals provide direct sterilizations and abortion referrals or abortions morally problematic.

13. What role should the Provider’s conscientious objection play in treatment decisions ? • Dr. Edmund Pellegrino has noted, “[i]n the last fifty years, secularism has come to dominate much of medical ethics…” And the trend in medical ethics has been toward increasing emphasis on the physician’s obligation to provide the care demanded by the patient and society, rather than on the care that the physician deems morally and medically indicated. • Edmund D. Pellegrino, The Physician’s Conscience, Conscience Clauses, and Religious Belief: A Catholic Perspective, 30 Fordham Urb. L. J. 221, 231 (2002).

14. The difficultly that both institutional and individual health care providers face in successfully seeking exemption from laws mandating the provision of reproductive services is exacerbated by the contemporary view of conscience as a judgment that is based on one’s own life experiences rather than on objective moral truth.

15. In discussing conscientious objection, James Childress has stated: “Conscience is personal and subjective; it is a person’s consciousness of and reflection on his own acts in relation to his standards of judgment. It is a first person claim, deriving from standards that he may or may not apply to the conduct of others.” James F. Childress, Appeals to Conscience, 89 Ethics 315, 318 (1979).

16. In contrast, the Catholic view of the exercise of conscience, as developed by John Paul II in Veritatis Splendor, is that of a practical judgment involving the application of the precepts of the natural law to a particular situation. It is premised on the existence of objective moral norms.

17. In a contemporary, secular liberal democracy like the United States where ethical relativism has become the prevailing public philosophy, an appeal to conscience based on objective moral truth is likely to be met with skepticism and even hostility

18. Indeed, as JP II observed in Evangelium Vitae, in this sort of society, ethical relativism is viewed as “an essential condition of democracy, inasmuch as it alone is held to guarantee tolerance, mutual respect between people and acceptance of the decisions of the majority, whereas moral norms considered to be objective and binding are held to lead to authoritarianism and intolerance.”

19. In Veritatis Splendor, JP II noted that the alliance between ethical relativism and liberal democracy has the potential “to remove any sure moral reference point from political and social life, and on a deeper level make the acknowledgment of truth impossible.”

20. Claims of conscience protection are more likely to be rejected when they are made in opposition to claims of sexual or reproductive autonomy, perhaps the most cherished of contemporary rights in our highly individualistic culture. • And as Father Robert Araujo. S.J., has prophesied, it may be that the liberal democracies of the twenty-first century will mandate compliance with their beliefs on abortion, euthanasia and emergency contraception. • Robert John Araujo, S.J., Conscience, Totalitarianism, and the Positivist Mind, 77 Miss. L. J. 571, 611-612 (2007).

21. What will FOCA do if passed? • Identical versions of the Freedom of Choice Act (FOCA) were introduced in both the House and Senate in the 110th Congress, but never passed. • It has not yet been introduced in the 111th Congress although a spokesman for Rep. Jerrold Nadler (D-NY) has indicated that Nadler intends to introduce it “sooner rather than later.” • During his campaign, President Obama promised to sign FOCA.

22. As introduced in the 110th Congress, FOCA: • Declares that access to abortion is “a fundamental right,” • Prohibits governments from interfering with “a woman’s right” to an abortion “prior to viability” and post-viability “where termination is necessary to protect the life or health of the mother.” • Prohibits governmental discrimination against women who choose to have an abortion. • Provides a private right of action for violation of the Act

23. FOCA applies retroactively to every state or federal law enacted prior to its adoption and thus may override existing conscience clause laws. • Unlike earlier versions of FOCA, the version introduced in the 110th congress had no savings clause for conscience protection. The earlier versions provided: • Nothing in this Act shall be construed to-- • (1) prevent a State from protecting unwilling individuals or private health care institutions from having to participate in the performance of abortions to which they are conscientiously oppose • Compare S. 25 and H.R. 1068, 103d Cong. (1993) and H.R. 776, 104th Cong. (1995) with S. 1173 and H.R. 1964, 110th Cong. (2007).

24. Although proponents of FOCA claim that it would merely codify Roe v. Wade, a fact sheet issued by the Secretariat for Pro-Life Activities of the United States Conference of Catholic Bishops claims that “FOCA goes far beyond even Roe.” • The fact sheet asserts that FOCA would require that abortion be treated no differently than live birth thereby overriding a number of state and federal laws. • The fact sheet argues that FOCA would require governments to pay for abortions in public funded programs, displace the federal ban on partial birth abortions, and “bar laws protecting a right of conscientious objection to abortion.”

25. An analysis of FOCA by the Office of General Counsel of the United States Conference of Catholic Bishops, opines that FOCA would render Planned Parenthood v. Casey, a 1992 Supreme Court decision that had given states somewhat more leeway in regulating abortion than Roe, “superfluous” insofar as it creates “a statutory abortion right that goes beyond what Casey and even Roe require.” 505 U.S. 833 (1992). Memorandum by Michael F. Moses, Assistant General Counsel, United States Conference of Catholic Bishops, Aug. 15, 2008, http://www.usccb.org/prolife/issues/FOCA/analysis.pdf.

26. FOCA prohibits discrimination and interference by governments –Thus on its face it is not directly applicable to Catholic hospitals • Nonetheless, if FOCA overrides state and federal conscience protection laws, Catholic hospitals might still be required to provide abortions by the state or federal government either as a direct mandate or condition of funding.

27. Conscience clause laws are important because under United States Supreme Court precedents, it is difficult for Catholic institutions to claim a exemption under the U.S. Constitution from neutral laws of general impact that adversely impact freedom of conscience unless there is evidence that a particular religion was targeted by the legislature. • Federal RFRA may provide additional protections from federal laws but not state laws-states are not required to satisfy compelling state interest test • FOCA could be read to override federal RFRA

28. In a 1997 case, the Supreme Court of Alaska held that a private non-profit, non-sectarian hospital was a “quasi-public” hospital and thereby required to provide abortions. • Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963(Alaska 1997).

29. The Mat Su Valley Hospital permitted abortions at its facility from 1970 to 1992. In 1992 the hospital’s Operating Board enacted a new policy on abortion. The policy prohibited abortions at the hospital unless (1) there is documentation by one or more physicians that the fetus has a condition that is incompatible with life; (2) the mother's life is threatened; or (3) the pregnancy is a result of rape or incest. All Operating Board members supported this new policy.

30. An abortion may not be performed in this state unless(1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200;(2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Social Services or a hospital operated by the federal government or an agency of the federal government;....(b) Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section. • Alaska Stat. § 18.16.010

31. The Alaska Supreme Court held there was a right to abortion under the Alaska Constitution that was broader than the federal right under Planned Parenthood v. Casey, and this right could only be limited in furtherance of a compelling state interest. • In effect, the Alaska constitutional right was based on Roe v. Wade, the standard that would be applicable under FOCA

32. The Alaska Court treated the private, community hospital as a “quasi-public” institution stating: We previously have determined that a hospital may be a “quasi-public” institution. Storrs v. Lutheran Hosps. and Homes Soc'y of Am., Inc., 609 P.2d 24 (Alaska 1980). In Storrs, we held that a quasi-public hospital “cannot violate due process ... in denying staff privileges.” FN11Id. at 28. The hospital was quasi-public because: (1) it was the only hospital serving the community; (2) the construction of the hospital was funded in significant part by State and federal grants; and (3) over twenty-five percent of the funds received for hospital services came from governmental sources. Id. Storrs established that a quasi-public medical facility is bound to protect constitutional rights affected by the administration of the hospital…The elements that led us to conclude that the hospital in Storrs was quasi-public show that the hospital in this case is quasi-public; thus, the conduct of …[this hospital] qualifies as “state action,” meaning that it “may be fairly treated as [the action] of the State itself.”

33. The Court continued: Since …[the hospital] is a quasi-public institution, its policies are subject to the limitations which the Alaska Constitution imposes on legislation and government regulations. Under Alaska's Constitution, there is a protected right to an abortion, and ..[it’s] policy interferes with that right. Since the right is fundamental, it cannot be interfered with unless the interference is justified by a compelling state interest. Further, assuming the existence of such an interest, there also must be no less restrictive means by which the interest might be …[the hospital] has not demonstrated a compelling state interest justifying its policy. It has not advanced any medical, safety, or other public-welfare interest to justify precluding elective abortions. …[The hospital] has stated unequivocally that its policy is a matter of conscience, and not a medical, safety, or economic issue. As …[the hospital] cannot raise a free exercise claim,this does not amount to a compelling state interest.

34. In a footnote, the court stated: Nothing said in this opinion should be taken to suggest that a quasi-public hospital could have a policy based on the religious tenets of its sponsors which could be a compelling state interest. Recognizing such a policy as “compelling” could violate the Establishment Clause of the First Amendment to the United States Constitution. As this point is not raised, we do not rule on it.

35. The Alaska Court continued: …[The hospital] argues that even if the Alaska Constitution encompasses the right to an abortion, and even if the hospital is a quasi-public institution, the legislature already has addressed the issue in AS 18.16.010(b), and has determined that a “hospital may decline to offer abortions for reasons of moral conscience.” ….[The hospital] argues that “[c]onsistent with its previous approach to the highly-sensitive question of abortion, this Court should defer to the considered judgment of the legislature.” However, we cannot defer to the legislature when infringement of a constitutional right results from legislative action. The issue before us includes the question whether AS 18.16.010(b) is a permissible limitation on a constitutional right. ..[The hospital] has a “sincere moral belief” that elective abortion is wrong. However, constitutional rights “cannot be allowed to yield simply because of disagreement with them.” …Therefore, AS 18.16.010(b) is unconstitutional to the extent that it applies to …[the hospital].

36. There has been some disagreement among scholars over the possible impact of FOCA. Cathleen Kaveny, a professor at the University of Notre Dame School of Law and a supporter of President Obama, criticizes FOCA because of its divisiveness, but otherwise downplays its impact. • She argues that although the text of FOCA is unclear, it is unlikely that it will be construed to override existing state abortion regulations heretofore deemed permissible under United States Supreme Court precedents (e.g., informed consent regulations, waiting periods, etc), conscience clause protection, or restrictions on abortion funding. She also questions the constitutionality of FOCA. Cathleen Kaveny,What FOCA is-And Isn’t, Commonweal, Jan. 30, 2009, http://www.commonwealmagazine.org/article.php3?id_article=2423

37. In contrast, Michael Stokes Paulsen of St. Thomas University Law School argues: Professor Kaveny’s essential argument is that FOCA’s legal consequences are unclear.  With all due respect, this position is simply indefensible under a straightforward reading of FOCA’s language and any realistic assessment of how that language would be interpreted and applied.  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. Michael Stokes Paulsen, The Legal Consequences of the Freedom of Choice Act, Feb. 3, 2009, http://www.moralaccountability.com/mission/the-legal-consequences-of-the-freedom-of-choice-act/.

38. Bishop Robert Lynch of St. Petersburg, Florida, a member of the Board of Trustees of the Catholic Health Association (CHA), was quoted by the Catholic News Service as saying that the CHA is opposed to the passage of FOCA, “[b]ut there is no plan to shut down any hospital if it passes” and “[t]here is no sense of ominous danger threatening Catholic health care institutions.”

39. CHA President Sister Carol Keehan is quoted as saying that FOCA “has never contained anything that would force Catholic hospitals or Catholic personnel to do abortions or to participate in them.” • Keehan further states: “I want to make it very clear that Catholic health care will not close and we will not compromise our principles.”

40. Professor Ron Rychlak of the University of Mississippi Law School has noted that Sister Carol Keehan’s and Bishop Lynch’s comments could be construed as indicating that if FOCA passes, there will be some sort of civil disobedience to it, but that is not clear from the context.

41. CONCLUSION • The potential impact of FOCA on existing conscience legislation is particularly troubling. • If FOCA is interpreted to implicitly repeal state and federal conscience protections, then it is possible that institutions could be forced into performing abortions despite moral objection. • Moreover, it would be prelude to changes in federal law that would require Catholic hospitals as a condition of participation of the Medicaid and Medicare programs to perform abortions notwithstanding moral objections. • It could also set the stage for lawsuits claiming that Catholic hospitals are state actors because of their receipt of federal funds and thus required to provide abortions. Cf. Doe v. Charleston Area Medical Center, 529 F.2d 638 (4th Cir. 1975) (holding that private hospital is a state actor under 42 U.S.C. § 1983 based on receipt of Hill-Burton funds and Medicare and Medicaid; hospital acted “under color of law” when it refused to allow its facilities to be used to perform an abortion).