New Moral Anesthesia for Abortion

“Is it possible, once again, to hold in tension seemingly opposite ideas about abortion?” This is the main question asked by Dr. Lisa Harris in the lead editorial in the April 12, 2018 NEJM. Her concern is that in her view, since the creation in January of the new Conscience and Religious Freedom division at HHS, subsequent comments by HHS leaders “suggest that they are uninterested in discrimination against health care providers whose consciences compel them to provide care, and uninterested in injuries to patients caused by care refusals.” (emphasis hers) She wants us to return to the time of the 1973 Church Amendment when she argues that lawmakers reached common ground protecting conscious rights of healthcare workers, then holding what she describes as a tension “between abortion as a new fundamental right for U.S. women and the reality that some healthcare providers could not in good conscience participate in it.” Our inability to maintain that tension, she believes, will continue to result in our present extreme divisiveness on the abortion issue. So, specifically, per Dr. Harris: “Can we understand abortion as both something that ‘stops a beating heart’ and a fundamental right, rather than insisting it’s only one or the other?”

Trying to understand abortion as both is the problem. Cognitive dissonance is the word Dr. Harris was looking for, and she is correct that something was needed immediately after Roe v. Wade to ease that dissonance.

With Roe v. Wade in early 1973, the Supreme Court determined that the Constitution prohibits the government from stopping one individual from ending the life of a second individual who was not actively ending the life of the first individual. No one was honestly claiming that we needed Roe v. Wade to allow physicians to perform an abortion to save the life of the mother if the baby/pregnancy was immediately threatening the life of that mother. The Church Amendment, which passed shortly after Roe v. Wade became law, essentially said that no one will be forced to perform an abortion or be discriminated against if they did so – effectively permitting an individual to follow one’s own religious beliefs or moral convictions on the matter. Abortion became just a personal religious or private moral thing.

I believe that the Church Amendment was the necessary moral anesthesia that allowed the Supreme Court to surgically join the opposite ideas that an abortion is both a fundamental right and an act that “stops a beating heart”, the amendment effectively numbing our ethical faculties to what Roe v. Wade would now permit.

Had pro-choice supporters simply adhered to the Church Amendment, there would not have been growing broad demand by pro-life groups for the proposed Conscience Protection Act of 2017 (H.R. 644). I suspect most pro-life supporters hope the creation of the new HHS division will correct the concerns addressed in the failed bill.

I worry the new HHS division will be the new moral anesthesia to lull us into contentment with securing arguably necessary conscience protections at the cost of leaving Roe v. Wade intact.

In his recent blog post, The Child I Want, Neil Skjoldal nicely articulated the dehumanization that results when we create a fundamental right to “stop a beating heart.” But we have known that this would happen since that right was first established. Almost identical concepts were discussed during oral arguments of Roe v. Wade, such as the following exchange between Justice Potter Stewart and attorney Sarah Weddington, who represented Roe. (see LINK for transcript or audio of the second reargument Oct 11, 1972, approximately one-third of the way through):

Potter Stewart: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?

Sarah R. Weddington: I would have a very difficult case. [Laughter]

Potter Stewart: You certainly would because you’d have the same kind of thing you’d have to say that this would be the equivalent to after the child was born.

Sarah R. Weddington That’s right.

Potter Stewart: If the mother thought that it bothered her health having the child around, she could have it killed. Isn’t that correct?

Sarah R. Weddington: That’s correct.

So, to answer Dr. Harris: “Can we understand abortion as both something that ‘stops a beating heart’ and a fundamental right, rather than insisting it’s only one or the other?” — I certainly hope not.

The Forgotten Woman of Socialized Medicine [1]

In Sweden, there is an ongoing battle in midwifery between conscience rights and abortion rights and abortion rights are presently winning. A recent Wall Street Journal article provides an excellent background and summary of the situation of one Ellinor Grimmarck, a 40-year-old Christian, mother of two, who quit her job in 2007 to return to school to become a midwife. In Sweden, there is an ongoing shortage of midwives and she received a stipend from a local county government to assist in her school expenses. Just prior to graduating in 2013, she asked her future hospital supervisors if they would accommodate her conscience rights not to perform abortions. Her stipend was terminated. Several others hospitals declined to hire her. She and her family ended up moving to nearby Norway where her conscience rights were accommodated in her new career as a midwife.

We may never had ever heard of Ms. Grimmarck had she not decided to sue the local county council in 2014 for religious discrimination and violation of her freedom of conscience. The WSJ article documents public characterizations against Ms. Grimmarck as an “‘extreme religious practitioner’ not unlike jihadists” and someone who is part of “a global wave of oppression against women”. One opponent offered “Those who are against abortion now, can’t we abort them-retroactively?”

Ms. Grimmarck lost her trial court case in November 2015. She appealed to the Swedish Labour Court of Appeals and just last Wednesday lost her appeal. Her attorney is considering whether to appeal to the European Court of Human Rights, where a ruling would have major implications for conscience rights across Europe. Support for that appeal is found in Article 9 of the European Convention on Human Rights (adopted as Swedish law in 1995), which gives everyone the right to freedom of conscience.

Given the critical shortage of midwives in Sweden, it strike me as more than odd that the government would reject anyone willing to assume any portion of the midwife skill set necessary to offload the current workload of midwifery in general.  Bringing on midwives wishing to limit their practice to the performance of live-births and unwilling to perform abortions would necessarily reduce the live-birth demands of midwifery in general, allowing more elective time for those wishing to focus on performing more abortions. As the WSJ article reported, the requirement any midwife perform abortions should be moot anyway because the 1974 Swedish abortion law limits the performance of abortions to physicians (though obviously this requirement has been modified given the results of Ms. Grimmarck’s recent appeal).

Given this example, we should remain ever vigilant regarding conscience protection laws here in the USA. This becomes even more critical if abortion rights move from a negative right (others must abstain from interfering with the abortion) to a positive right (others are required to provide the abortion). Conscience protection laws may not prevent abortion from becoming a positive right but it will clearly protect midwives and obstetricians who find abortion morally repugnant by allowing them to continue their practice of medicine in such a legal setting.

[1] Weak apologies to Ayn Rand (her character Dr. Hendricks in the 1957 novel Atlas Shrugged)

The Strange (Future) Case of Doctors & Mr. Hyde

On 28 June 2016, the Supreme Court declined to hear an appeal of a Ninth Circuit decision that forced a small pharmacy in Washington to dispense Plan B (a “morning after pill” that terminates a pregnancy via abortion) despite the religious objections of the pharmacist owners. In other words, the lower court ruled that the pharmacists must violate their conscience by prescribing Plan B or terminate their pharmacy business. Only three Supreme Court Justices agreed to hear the case; four are required. It can be argued that if Justice Scalia were still on the Court, The Court would have heard the case. As such, the Ninth Circuit’s ruling stands but is limited to the Ninth Circuit. Justice Alito’s dissent is worth the 15 page read. Doctors of Pharmacy no longer have religious/conscience protections in the United States within the Ninth Circuit.

Read that last sentence again.

Conscience protection for other health care providers may be more tenuous than is generally granted. Previously, multiple federal amendments provided health care workers conscience protections (Church Amendment, Public Health Service Act 245 & Weldon Amendment) A separate rider to annual omnibus bills called the Hyde Amendment actually prohibited federal Medicare and Medicaid funding of abortion specifically. The PPACA (Obamacare) changed the funding rules and arguably some of the previous conscience protections to the point where President Obama had to issue Executive Order 13535 specifically guaranteeing continuation of those protections in order to secure passage of the PPACA. The alleged tenuousness of current conscience protections mentioned above is the fact that an Executive Order can be easily be rescinded by this or any future president while overturning, even in part, the PPACA is no easy task. Additionally, efforts by those pro-abortion to eliminate amendments like the Hyde Amendment in its current form are vigorous and ongoing. (The link is presented as evidence not endorsement)

Regarding the title, the late Congressman Mr. Henry Hyde, author of the Hyde Amendment, is the antithetical homonym of the fictional Mr. Edward Hyde, the evil sociopathic alter ego of the philanthropic Dr. Henry Jekyll. Ironically, the present day Hyde (along with the other amendments listed) may be one of health care’s last protections against future violations of moral integrity by continuing to allow the unobstructed practice of medicine with one’s conscience intact.