“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.