Wednesday, April 23rd, 2008
By Patrick Nagorski
2009 AUL Fellow
Most Americans know that this year marks the 36th anniversary of Roe v. Wade, the controversial U.S. Supreme Court decision legalizing abortion. However, 2009 is also the 36th anniversary of important federal protections for healthcare providers: the Church Amendments. For more than three decades, these Amendments have provided a much-needed foundation for protecting the moral and ethical freedoms of healthcare providers.
Today, these protections are increasingly important as abortion proponents seek to weaken and, ultimately, remove common-sense abortion laws such as informed consent and parental involvement, as well as federal and state laws and regulations protecting healthcare providers who do not wish to participate in abortions or other conflict-ridden procedures. Moreover, these protections are also implicated as Congress and the Administration debate a government take-over of America’s healthcare industry.
The Church Amendments were originally enacted to protect the freedom of healthcare providers to decline to participate in abortion and sterilization, two of the most conflict-ridden procedures in medicine. The impact of these protections has been significant. For example, they have helped to stem the tide of healthcare providers leaving the obstetrics and gynecology (OB/GYN) specialty and, thus, have protected the lives of mothers and unborn and newly-born children who depend upon those providers for care. Furthermore, these laws protect communities at large by ensuring that healthcare providers are generally available and that patients will be able to choose providers who share their values.
A Brief History of Federal Conscience Protections
The Church Amendments were sponsored by Democrat Senator Frank Church in 1973 in direct response to the Supreme Court’s decision in Roe v Wade. These four amendments focus upon a healthcare provider’s right to object on moral and religious grounds to being forced to take part in abortions and sterilizations.
The first Church amendment prevents courts and other public officials from requiring any person, institution, or organization to perform, assist in, or provide facilities or resources for abortions or sterilizations. The second amendment forbids employment-related discrimination against doctors, nurses, physician’s assistants, and other medical providers if they refuse to participate in abortions or sterilizations based on moral or religious grounds. The third amendment extends this protection against employment related discrimination to researchers and laboratory workers who are either working on a lawful Health and Human Services (HHS)-funded research project or who refuse to take part in such a project because of conscientious objections, protecting those working in emerging biotechnologies from being forced to participate in human cloning and destructive stem-cell research. Finally, the fourth Church amendment prevents HHS from requiring a recipient of funding to participate in certain programs if the recipient objects on moral or religious grounds to the program.
At the federal level, the Church Amendments were followed by several amendments that expanded upon the originally-offered protections. In 1996, Section 245 of the Public Health Service Act, also known as the “Coats Amendment,” extended conscience protection from federal, state, and local governments receiving federal funds to individuals who refuse to train in abortions or refer patients to an abortion provider. Later, the Hyde-Weldon Amendment extended the same protection to hospitals and insurance companies.
Most recently, in December 2008, the outgoing Bush Administration enacted further HHS regulations that provided much-needed enforcement mechanisms for the previous protective legislation. These new regulations provided for the federal defunding of any hospital or public agency that engaged in discriminatory behavior and mandated a short certification of compliance to be submitted to HHS by all entities receiving specified federal healthcare funds.
After the Church Amendments were passed, many states followed suit, creating legal protections for healthcare providers – both individual and institutional – who conscientiously object to providing abortions and other conflict-ridden services. As of 2009, the only states that do not have any right of conscience protections are Alabama, Vermont, and New Hampshire. Conversely, Mississippi is the only state that provides full right of conscience protection to all individuals, institutions, and healthcare payers. The rest of the states provide varying degrees of protections for conscience.
The Church Amendments and other federal and state conscience protections have served as effective protection for the healthcare community and the people they serve. For example, such protections have helped stem the tide of doctors leaving the OB/GYN specialty.
From 2000 to 2004, America experienced a large shortage in the number of medical students entering into OB/GYN residencies and a large number of experienced OB/GYN doctors started retiring or leaving the field for another medical specialty. This exodus was due, in a large part, to the vast number of medical malpractice suits brought against OB/GYN doctors by opportunistic lawyers and bereaved parents whose children were born with birth defects. These lawsuits caused a spike in the malpractice insurance rates for OB/GYNs to the point where they now pay the second highest premiums behind neurosurgeons.
Abortion advocates have tried to exacerbate this shortage by demanding that healthcare providers perform abortions and sterilizations and prescribe or provide contraception even if the provider has a moral, ethical, or religious objection to such actions. Unfortunately, abortion advocates have convinced a number of legislatures and courts to side with them and pass or uphold laws and ordinances requiring participation in such practices and providing few or meaningless exemptions to the mandates. The providers targeted by abortion advocates – men and women who have devoted years of their lives to extensive and challenging study so they could help others and who compassionately care for their patients out of the sheer strength and power of their convictions — have, understandably, responded to these demands by leaving their fields for more accommodating environments. For the most part, abortion advocates readily accept this exodus and the shortage of qualified providers that results. As one short-sighted governor responded to pharmacists who refuse to dispense Plan B, so-called “emergency contraception,” “Those with moral objections should find another profession.”
The effect of this exodus has been to leave many women without OB/GYN care – especially women in rural areas and poor women. In many states, pregnant women have to drive several hours to find a doctor or other trained professional who can provide their prenatal care and, ultimately, deliver their babies, if they can reasonably find one at all.
Abortion advocates, who routinely decry the declining number of abortion providers, vocally oppose rights of conscience. However, the sheer irony of their position seems lost on them as they seek to expand access to abortion at the expense of individual providers’ rights. In their lexicon, conscience and choice matter, but only the conscience and moral choice of the woman who wants an abortion. Thus, her choice must be accommodated even to the detrimental of the provider and the community that he or she services.
Conscience protections help ensure that individuals and communities have qualified healthcare providers who share their values. Healthcare providers work with patients to achieve positive and healthy outcomes. To do so, a patient has to trust her provider. She has to trust the provider to give her accurate and correct information. She has to trust that the provider will do nothing to harm her or those she loves. Frankly, many patients and their families simply do not feel comfortable receiving pre-natal and post-natal care and advice from an OB/GYN whom they know only an hour before was performing or assisting in an abortion.
The future of conscience protections is uncertain. Recently, the Obama Administration pledged to do away with the Bush Administration’s HHS regulations that effectively implemented the conscience protections encompassed in the Church Amendments and other federal laws. Furthermore, abortion advocates are focused upon forcing providers to participate in abortions, to provide ready access to contraception, and to ignore their deepest-held beliefs to facilitate unfettered access to these conflict-ridden procedures. Attacks upon conscience are likely to increase in number and intensity, eventually forcing providers to participate in objectionable procedures or leave the medical professions. This would certainly result in a shortage of providers and a decrease in the quality of life for all Americans.
 42 USC §238n.
 Consolidated Appropriation Act 2005, Pub. L. No. 108-447, § 508(a), (d)(1)-(2), 118 Stat. 2809 (2004).
 Americans United for Life, Defending Life 2009, 569, (Denise M. Burke, ed.) (2009).
 Jeannette Moninger, The OBGYN Shortage, Parents Magazine, http://www.parents.com/pregnancy/labor-delivery/support/ob-gyn-shortage/ (last visited on June 26, 2009).
 Morr-Fitz, Inc. v Blagojevich, 231 Ill. 2d 474 (2008).
 Id. at 501.
 See note 4, supra.
This article was published with permission from Culture of Life Foundation. To view the original publication, see their website.Posted in categories: Blog, Law Articles.