Post-Roe v. Wade: Overt War on Conscience Rages
by Jonathan Imbody
Today's Christian Doctor - Spring 2012
“The first time ever I saw your face, I thought the sun rose in your eyes.”
As Roberta Flack softly coos her 1973 Grammy-winning song in the background, the 2011 TV commercial slowly unveils a stunning, color image of a developing, gently moving baby in utero. The baby’s tiny arm curls upward, framing her glorious face.
The video shifts to the faces of a beaming young woman and a wide-eyed young man. A wider shot reveals a physician applying an ultrasound device to the woman’s pregnant belly. The parents watch with wonder as the monitor shows their newest family member opening and closing her mouth.
“When you see your baby for the first time on the new GE 4D ultrasound system, it really is . . . a miracle.”
The final, madonna-like shot shows mother cradling her newborn baby as father looks on with wonder.
Fade with music: “The first time ever I saw your face.”
If only the U.S. Supreme Court 38 years ago had been able to view that ultrasound, and apprehend its profound insight into human development, millions more Americans could be alive today, thanks to the eye-opening medical technology that is awakening our culture to the reality of early life.
The medical community might be advancing universal healthcare rather than facing a shortage of professionals fueled in part by discrimination on the basis of conscience. For decades and with increasing aggressiveness, medical schools have been drumming out pro-life medical school candidates; training programs have been coercing residents to bow to abortion ideology; and medical institutions have been demoting and dismissing physicians who dare to profess life-honoring medical ethics.
In 1973, the Supreme Court handed down a landmark decision that deemed an early developing baby a virtually faceless non-person. In Roe v. Wade, the Court revisited its 1857 Dred Scott v. Sandford decision. The Scott ruling, which essentially valued a slave as just three-fifths of a person, divided the nation over the issue of federalism (the division of powers between the states and the national government) and spawned a bloody fratricide.
After the war in 1868, Americans attempted to reconstruct the constitutional protection of persons by enacting the Fourteenth Amendment: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .”
Yet just over a century later, the Supreme Court once again reignited the fight over federalism by creating a whole new class of non-persons deemed ineligible for constitutional protection. The Court unilaterally declared that an unborn human being is not a person.
Writing for the majority, Justice Harry Blackmun asserted, “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment . . . [But we are persuaded that] the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”1
Court reverts to pre-Christian ancient Greece
In Roe, the Court casted aside not only federalism but also more than two millennia of medical ethics, under which physicians who followed the Hippocratic oath had determined to adhere to this ethical commitment: “I will use treatment to help the sick, according to my ability and judgment, but I will never use it to injure or wrong them. I will not help a patient commit suicide, even though asked to do so, nor will I suggest such a plan. Similarly, I will not perform abortions.”
Christian healthcare professionals then and now have staked their consciences and careers on the unambiguous biblical commandment, “You shall not murder” (Exodus 20:13). Christians see God’s sacred hand on early human life, reflected in passages such as David’s psalm, “For you created my inmost being; you knit me together in my mother’s womb” (Psalm 139:13) and the prophecy concerning John the Baptist that “he will be filled with the Holy Spirit while yet in his mother’s womb” (Luke 1:15, NASB).
Yet in Roe, the Court asserted the indifference of the modern secular state to these venerable foundations of medical ethics and personal conscience. In analyzing medical ethics, Justice Blackmun acknowledged the later confluence of the Hippocratic oath with Christian biblical principles, but he chose to cast his lot with ancient Greeks who rationalized killing.
Blackmun observed, “Most Greek thinkers . . . commended abortion, at least prior to viability.” He agreed with an analysis that characterized the Hippocratic oath as merely “a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.”2
Christian OB/Gyn relates immediate impact of Roe
By returning to the ancient Greek’s rationalization of killing, the Court undermined more than 2,000 years of medical ethics and the objective bases for training physicians’ consciences. The ruling immediately impacted conscientious Christian physicians, as related in an article published in the Christian Medical Society Journal in 1976. In an essay entitled “Abortion and the Law,” Princeton Professor of Religion Paul Ramsey highlighted the reaction of a young Christian physician: “The Supreme Court decision in 1973 came at a point in my residency training in obstetrics and gynecology . . . I decided that I could not work in a hospital that did abortions. “I was assured by the faculty that I would not have to participate or assist in abortions . . . my conscientious objection went much deeper than that. . . . Since the Clinic did not comply with my request to finish the residency at [another] Hospital, I felt forced to resign my position there.”
Congress passes conscience-protecting laws
Thankfully, the United States Congress grasped the importance of life-affirming physicians’ moral dilemma. By constitutional design more responsive to the values and sentiments of the American public than the often isolated and imperial Supreme Court, Congress recognized Roe’s potential for trampling conscience convictions and passed legislation to protect the conscience rights of life-affirming healthcare professionals from judicial fiat.
The 1973 Public Health Service Act (the “Church Amendment”) provided that no individual could be required, at least under specified federal funding programs, “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.”3
The law also banned discrimination, promotion or termination for such reasons. While applauding legal protections for the healthcare workplace, Professor Ramsey presciently warned, “The medical or nursing student, still in training, is in a more profound dilemma of conscience. In order to graduate, student doctors and nurses may be forced into learning procedures which they regard as violations of their professional and moral integrity. They may have to participate in abortions for which they believe there is no medical or moral justification.”
Congress would not adequately address the concern regarding training programs until 1996, when it passed a law (the Public Health Service Act, Section 245) providing that, “the Federal Government, and any State or local government that receives Federal financial assistance, may not subject any health care entity to discrimination on the basis that the entity refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions . . .”4
Finally, in 2004, Congress passed the Hyde-Weldon Conscience Protection Amendment to ensure that specified federal funds would not be available to any agency that discriminated against healthcare institutions that don't provide abortions.
Medical culture lags behind laws
However, the law is one thing, and the culture of medical institutions is yet another. Professor Ramsey provided a crucial insight into this truth: “Without effective institutional conscience clauses, individual conscience clauses will be worthless. Without effective enforcement, the conscience clauses are nugatory—much like laws against discrimination without a watchdog to insure equal opportunity. “Without a sea-change of opinion in our nation, the wave of the future seems clear to me. . . . A campaign has begun to require hospitals, doctors and nurses to perform abortions as a duty.”
That prediction turned to reality in November 2007, when the radically politicized, pro-abortion American College of Obstetricians and Gynecologists (ACOG) issued Committee Opinion Number 385, “The Limits of Conscientious Refusal in Reproductive Medicine.” The new ACOG policy stated, “Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request. Providers with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place.”
To make matters worse for life-affirming OB/Gyns, in December 2007, the American Board of Obstetrics and Gynecology’s (ABOG’s) “Bulletin for 2008 Maintenance of Certification” stated that certification may be denied due to a “violation of ABOG or ACOG rules and/or ethics principles” [emphasis added].
ACOG-ABOG positions launch overt war on conscience
The conjoining of ACOG’s political abortion advocacy with ABOG’s credentialing authority signaled a new phase of the long-simmering covert war in the medical community against pro-life healthcare professionals. The assault on conscience rights triggered an investigation by the Bush administration's U.S. Dept. of Health and Human Services (HHS), which led to a federal regulation to implement more than three decades of federal conscience laws.
The battle also elevated the Christian Medical Association to a position of national leadership in the campaign to protect conscience rights in healthcare, sparking the formation of the CMA-led, 50-organization coalition, Freedom2Care.
Despite the Obama administration’s 2011 gutting of the HHS conscience-protecting federal regulation, the federal conscience-protecting laws on which the regulation rests remain on the books. Whether or not those federal laws will actually serve to protect conscience rights in healthcare depends in part on ongoing legislative efforts to strengthen the laws.
Real-life protection, however, depends on cultural attitudes and policies in what Professor Ramsey insightfully identified as the make-or-break battleground of conscience rights: the medical community.
1 Blackmun, Harry, majority opinion in Roe v. Wade, decided by the Supreme Court on January 22, 1973; section IX.A.
2 Blackmun, Harry, majority opinion in Roe v. Wade, decided by the Supreme Court on January 22, 1973; section VI.2.
3 42 U.S.C. Section 300A-7.
4 42 U.S.C. § 238(n).