The year is 1971. MacArthur Hill has the dream. Again. He is standing in front of a jury, holding a live baby in his arms, staring down into a bucket of water, deliberating: Should he, or should he not, drown the child? The former obstetrician/abortionist says about his practice, "I knew that what I was doing was wrong. My body just instinctively knew. Clearly, conscience was involved here."
The issue of conscience has come to the fore ever since President Barack Obama took office with a pledge to eliminate pro-life measures passed by state legislatures. His chief vehicle for doing that: the Freedom of Choice Act (FOCA), which Donna Harrison, president of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), calls a "sweeping elimination of conscience, because it establishes abortion as a fundamental right, like free speech, and puts abortion under anti-discrimination law."
But most doctors I interviewed said that FOCA, being so extreme, is not currently the main threat. They fear more the subtle loss of conscience protections that could pave the way for more drastic measures, like FOCA, later on. They are paying attention to President Obama's announced plan to rescind the Bush administration's Provider Conscience Regulations, which protect health care professionals who are morally opposed to certain medical procedures.
Such conscience protection goes back three decades to laws passed during the 1970s that forbid discrimination against health care personnel for their religious or moral objections to procedures such as abortion. Congress in 1996 added Public Health Service Act 245, which prohibits discrimination against institutions or individuals who refuse to perform, refer for, or be trained in objectionable procedures such as abortion. The Hyde/Weldon Conscience Protection Amendment enacted in 2004 provided additional protection for those who do not want to perform, pay for, provide insurance coverage for, or refer for abortions.
The problem, according to Dr. David Stevens, CEO of the Christian Medical and Dental Associations (CMDA), is that these laws provide no venue for physicians to file claims of discrimination, nor are mechanisms in place to discipline health care institutions that discriminate against conscience: "It's like tomorrow the government announces they have speeding laws, but won't enforce them." According to Stevens, the Bush administration's Provider Conscience Regulations provided the "teeth" needed to protect health care professionals.
The Bush regulation specifies that individuals have the right to be conscientious objectors to abortion and other acts they deem immoral. The regulation threatens health care institutions with loss of federal funding should they force conscience violation. Crucially, the regulation establishes the Office of Civil Rights of the Department of Health and Human Services as the entity for health care providers to complain to, should they experience any incidence of discrimination.
But soon after Obama moved into the White House, his administration signaled its intent to undo Bush's regulation. A 30-day public comment period that saw tens of thousands of pleas to keep the protections intact ended in April, and since then pro-life medical professionals have been bracing for the official demise of the conscience protection.
This regulation became important because of two policies of medical groups that have made their peace with abortion. In 2007 the American College of Obstetrics and Gynecology (ACOG) issued its Opinion No. 385, "The Limits of Conscientious Refusal in Reproductive Medicine." The opinion states that if health care providers cannot, in good conscience, perform certain medical procedures, they must refer a patient to someone who does-even if abetting an abortion in that way is abhorrent to an obstetrician called to bring life into the world, not aid in its killing.
Once ACOG issued its opinion, the American Board of Obstetrics and Gynecology (ABOG) issued a follow-up policy publication that linked compliance with ACOG to board certification. Between ABOG and ACOG, pro-life physicians were under pressure to become cogs in the abortion machinery. Former Health and Human Services Secretary Michael Leavitt criticized that pressure when he announced last year the Bush administration's regulation: "Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience. This rule protects the right of medical providers to care for their patients in accord with their conscience."
Although abortion is the main and most obvious battlefront, other conscience issues are also involved. Freedom2Care, an umbrella group of 45 organizations, lists on its website more than 50 instances of discrimination against anesthesiologists, medical students, nurses, hospital administrators, EMTs, secretaries, Catholic hospitals, and pharmacists. Whether it is refusing to anesthetize a woman for an abortion, refusing to be trained to perform abortions, assisting in abortions, dispensing drugs deemed harmful to life, or artificially inseminating a woman in a lesbian relationship, it seems an increasing number of professionals may be forced to choose between their convictions and their careers.
Considered by some a soft target, pharmacists could be risking their jobs if they refuse to dispense a prescription they suspect could be used for suicide, or if they refuse to dispense Plan B, commonly called the "morning-after" pill, an abortifacient now given without prescription to women 17 or older. In 2005, Illinois Gov. Rod R. Blagojevich-he has since been thrust from office because of corruption-paid off his pro-abortion backers by issuing an executive order that required pharmacies to dispense all prescriptions "without delay." This rule contradicted an existing law that protected conscience in all health care settings.
The responses indicated what may happen nationwide. Some pharmacists and pharmacy owners like Luke Vander Bleek, could not, in good conscience, obey the governor's order, which would essentially require him to dispense Plan B. In front of the U.S. House of Representatives, Vander Bleek stated, "I will not practice in an environment, [in] which we are legally obligated to be involved in the destruction of human life." Vander Bleek and fellow pharmacist Glenn Kosirog sued the state, and in April Sangamon Circuit Judge John Belz issued a temporary restraining order on enforcement of the executive order against the two pharmacists while the case is pending.
Other pharmacies, in an attempt to tiptoe around the issue, refused to stock the time-sensitive Plan B, hoping women would find it at another pharmacy. Retired pharmacist Lynn Parr, after a hand slapping from his manager for telling a customer that for religious reasons he would not dispense Prevenz, an "emergency contraceptive," was told to "stay quiet and try not to order it" or risk being fired. From then on, his manager told him to tell people they did not stock Plan B but could order it, knowing full well that women would have to find the drug elsewhere, since it is time sensitive and must be completely taken within 72 hours of intercourse.
Sandy Christiansen of the pro-life resource network CareNet remembers the time that she, as chief of obstetrical services, refused to participate in a patient's late-term abortion and suffered a public reproach from the attending physician: "She accused me of abandoning my patient, of shirking my responsibilities, and being insensitive to my patient. Not once did she acknowledge that I had a legitimate reason to take such a stand." Christiansen recently taught at the University of Maryland and found medical students with life-affirming values not sure whether they could complete the program.
If Obama does rescind the Bush regulations-a decision is expected soon-the face of health care will have new wrinkles. "Health care institutions with federal funding will believe they are not legally obligated to respect the conscience of health care staff, with the result being that pro-life doctors and pharmacists will be driven out of their professions," predicted Steve Aden of the Alliance Defense Fund. "Planned Parenthood and other pro-abortion groups will spare no money in hounding pro-life doctors and pharmacists, who will then have to kowtow or go out of business."
David Christensen of the Family Research Council reports that some doctors, anticipating Obama pressure, are dropping Medicaid patients so that they will not be forced to violate conscience in order to receive federal funds. For physicians like MacArthur Hill, this would mean a loss of 40 percent of his patients and the end of his practice.
John Brehany of the Catholic Medical Association says it is "highly unlikely" that Catholic hospitals under the Obama administration will be forced to do abortions, but foresees pressure on them to add abortion, sterilization, and contraceptives to their medical offerings in order to continue receiving federal funding. Catholic hospitals make up 17 percent of U.S. health care institutions, but Brehany notes that "with increased federal control over health care, the ability to be independent is going to be compromised."
Physicians concerned about abetting suicide also oppose the Obama plans. Family medicine professor William Toffler, who is executive director of the Physicians for Compassionate Care Education Foundation, argued in a recent Los Angeles Times article on assisted suicide that opponents of the Bush regulation "want to force doctors to act against their conscience and to become essentially vending machines for individuals who requisition overdoses to kill themselves."
But pressure from pro-abortion groups seems likely to override such concerns: Planned Parenthood states on its website, "While we firmly believe that all people have a right to their own opinions and moral beliefs, it is unethical for health care providers to stand in the way of a woman's access to safe, legal, and professional health care." Question: Should pro-life obstetricians be able to practice, and should the majority of Americans who declare themselves pro-life (51 percent in a May Gallup Poll) have access to a doctor who shares their views? (Eighty-eight percent of Americans feel it is important to have a doctor with similar views, according to a recent survey by the Polling Company.)
The politics of conscience protection are likely to be crucial. More than half of Democrats recently polled support conscience protection regulation, while a full 80 percent of Obama supporters surveyed believe that health care professionals should not be forced to practice medicine that violates conscience. Obama may have trouble responding to that majority while keeping his pledges to extreme pro-abortion backers: He declared in his May 18 Notre Dame speech that he wanted to "honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."
But some who support legalized abortion express concern: Dickinson College philosophy professor Crispin Sartwell criticized in the Los Angeles Times "the idea that, in assuming some function-some career, for instance-I resign my conscience to the institution or to the state." He called that "perhaps the single most pernicious notion in human history. It is at the heart of the wars and genocides of this century and the last."
MacArthur Hill, now a pro-life Christian, says that his practice is booming, mainly because of his unapologetic public stance against abortion. In 2008, he was voted "Doctor of the Year" at Lutheran Medical Center in Wheat Ridge, Colo., and delivered 270 babies-not bad for a 67-year-old former abortionist. Should conscience protection for health care professionals be removed, though, he has some advice for new doctors: "Go into dermatology."
1973: The Church Amendment states that hospitals and individuals receiving federal funds will not be forced to participate in abortion or any other procedure that violates their moral or religious convictions.
1996: Public Health Service Act Section 245 prohibits discrimination against individuals or institutions that refuse to undergo or require abortion training. It also protects those who refuse to perform or provide referrals for abortion.
2004: The Hyde/Weldon Conscience Protection Amendment is an appropriations rider that prohibits discrimination against federally-funded health care providers (including individuals, hospitals, and health insurance companies) who will not pay for, provide, or refer for abortion.
2007: American College of Obstetrics and Gynecology (ACOG) issues Opinion No. 385, "The Limits of Conscientious Refusal in Reproductive Medicine," stating that health care providers have a duty to refer patients for services the provider finds morally objectionable or move their practice in close proximity to a provider of such services. ACOG warns OB/GYNs that "disqualification or diplomatic revocation . . . may occur whenever" they come into conflict with this ethical code, putting at risk board certification needed for hospital privileges and medical practice in general.
Dec. 18, 2008: Bush's Provider Conscience Regulations provide a way to enforce conscience protection.
March 5, 2009: The Obama administration signals its intent to rescind Bush's Provider Conscience Regulations.
April 9, 2009: The 30-day public comment period on Obama's proposal to eliminate Bush's Provider Conscience Regulations ends. An organization set up to fight the repeal, the Freedom2Care Coalition, reported sending nearly 50,000 protest comments to the Department of Health and Human Services.