The contours of physicians’ conscience rights and their correlative obligations have been contested for decades. Indeed, the last half century has seen profound changes in both the practice of medicine and the state of law that necessarily implicate the position of the physician vis-à-vis the patient and the procedures that the physician may be asked to provide. As Azgad Gold notes, increasingly “the medical field became more ‘subjective’ than ‘objective,’ as reflected by the shift to measuring outcomes of treatments by ‘quality of life’ parameters rather than the traditional objective ‘morbidity’ and ‘mortality’ parameters.” This, coupled with the liberalization of abortion following Roe v. Wade, has increased internal and external pressures on the medical field to see abortion as simply another valid medical choice to which the patient is subjectively entitled, regardless of the ethical—or medical—views of her attending physician.

Nevertheless mainstream medical ethics maintains that physicians have the right to refuse service to patients. It is a professional prerogative that covers everything from a disagreement over the soundness of a requested procedure to wanting to avoid notorious bill dodgers. Furthermore, on a traditional understanding, “hospital employees have the right to refuse to participate in performing an abortion, and a hospital cannot dismiss the employee for insubordination. An employee can abstain from assisting in an abortion procedure as a matter of conscience or religious conviction.”

On the other side of this debate, there is a sense that the principle of “patient autonomy” should be paramount, and what is conscientious objection to one person is burdensome refusal to another. Under this view,

The widely accepted ethical principle that patients are autonomous individuals with the right to make the final decisions concerning their medical care, along with the corresponding principle that appears in all medical professionals’ codes of ethics that the ‘patient’s interest comes first’ leads to the following general rule: patient care decisions should be based on patient autonomy, as mediated by the clinician’s conclusion that the requested therapy (1) is not medically contraindicated (since it is both medically effective and not considered unethical within the profession’s generally accepted concept of ethical practice) and (2) is not illegal.

Prior to November 2007, the American College of Obstetricians and Gynecologists (ACOG) had not taken a definitive stance on the issue of conscientious objection. The organization had established ethical guidelines for the permissibility of abortion, but these included an acknowledgement of “physician autonomy” in the right of obstetricians not to perform abortions.

By 2007, ACOG massaged its view, issuing Ethics Committee Opinion #385, “The Limits of Conscientious Refusal in Reproductive Medicine.” While conceding that conscience is a question of “moral integrity,” the Ethics Opinion ultimately concludes “there are clearly limits to the degree to which appeals to conscience may justifiably guide decision making.” This gives precedence, ultimately, to the principle of “patient autonomy.” In the end, obstetric physicians who have a conscientious objection to performing an abortion or sterilization, or to providing contraception, must (1) provide notice to patients of this fact, (2) refer patients to other providers for such procedures if they are unwilling to provide them, and (3) perform the procedures themselves regardless of conscientious objection if referral is not feasible.

The likely result of such rules is clear to pro-abortion scholars: fewer pro-life doctors. As Professor Julie Cantor argued in the New England Journal of Medicine, “As the gate-keepers to medicine, physicians and other health care providers have an obligation to choose specialties that are not moral minefields for them. Qualms about abortion, sterilization, and birth control? Do not practice women’s health.” Likewise, Oxford ethicist Julian Savulescu opined in the British Journal of Medicine, “If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.” When conscience rights are not a priority in medicine, purposeful exclusion of dissenting voices is the desired norm.

The danger of these associational norms comes from the enforceable ethics rules of the American Board of Obstetricians and Gynecologists, which still references ABOG’s ethics guidelines in its Bulletin for Maintenance of Certification (the rules by which obstetricians keep their board certification). Thus the threat exists that pro-life obstetricians could be decertified by their specialty board for any number of conscientious decisions: failing to notify patients that they don’t perform abortions, not referring for abortions, or even not performing them in certain cases.

While there are various legislative protections for such physicians through laws like the Church Amendments and the Weldon Amendment, they are attached to appropriated funds and it is unclear that any such protections will apply to the unique revenue streams of the Patient Protection and Affordable Care Act (so-called “Obamacare”). Likewise, while the previous legislative enactments were enhanced by conscience protection regulations under President Bush, President Obama revoked the lion’s share of those regulatory protections (in many ways specifically designed to prevent an ABOG decertification on conscience grounds).

While nurses are protected under traditional medical ethics, as well as the legislative conscience protections and the (mostly defunct) Bush regulations, they too have faced increasing pressure to assist with abortions. Unlike obstetricians who mostly worry about peer retaliation through their Board—and, through decertification, a loss of hospital admitting privileges—nurses typically face more direct consequences in exercising their conscience rights, such as disciplinary action by superiors or even termination.

As the UMDNJ case shows, a dozen day-surgery nurses were told to prepare to assist with abortions or be terminated. Likewise, a previous case in New York’s Mt. Sinai Hospital involved a labor and delivery nurse who faced discipline after refusing to assist in a late-term abortion on (well-known) grounds of conscientious objection. These are recent cases from high-profile hospitals in which the message is clear: nursing is (or ought to be) a pro-abortion field.

What effects do pro-life obstetric decertification and nurse termination have on the supply of such medical professionals? The enforcement of obstetric ethics norms that would require the performance of—or referral for—abortions would effectively exclude from the practice of obstetric medicine a substantial percentage of the population that either (a) identifies as pro-life or (b) would prefer non-complicity in abortion on medical grounds. The same would hold for hospital nursing should more institutions follow the lead of hospitals like UMDNJ. While the precise percentage of such objectors is unknown, the effects of such anti-conscience norms are not: by erecting a new barrier to entry into the practice of obstetric medicine—a pro-abortion norm—ABOG decertification for conscientious objection would reduce the supply of obstetric physicians; depending on the nature of the rule, an “assist or leave” rule would reduce the supply of nurses, potentially beyond simply labor and delivery (as in the UMDNJ case). A reduced supply, coupled with a static or increased demand, will result in a shortage of obstetricians and nurses.

There is already a growing physician shortage, affecting some communities more severely than others. The shortage will increase without any of the supply reductions that are likely to occur as a result of decertifying practicing obstetricians who refuse to perform abortions and deterring future obstetricians who will choose a different career or specialty rather than violate their consciences. While physician shortages have been most acute in the field of primary care, they are predicted to grow in both primary care and specialties, and have already been felt in obstetrics. Though the causes of these current and probable shortages are manifold, crowding out pro-life individuals from obstetric practice would surely exacerbate this problem.

Likewise we are in the midst of a nursing shortage. As the American Association of Colleges of Nursing notes, “The United States is projected to have a nursing shortage that is expected to intensify as baby boomers age and the need for health care grows.” The Bureau of Labor Statistics estimates that there will be over 600,000 more nursing jobs available in 2012 than there were in 2002. The need for nurses is so great that nursing is one of the few fields in which employers seeking to hire foreign labor do not need to file a labor certification with the Department of Labor; in effect, the government just assumes that medical employers need the nurses. And yet in the face of these persistent supply problems, UMDNJ says that a dozen nurses (and any number of others with similar beliefs) are not fit to practice nursing simply because they oppose abortion.

Such potential reductions in the supply of obstetricians (and further reductions of the supply of nurses) should be of particular concern to those interested in health care reform. It is particularly inconsistent with the underlying policies of President Obama’s health care reform measures. As the Office of Management and Budget noted, “The Administration will explore all serious ideas that, in a fiscally responsible manner, achieve the common goals of constraining [health care] costs, expanding access, and improving quality.” A reduction in the supply of obstetricians and nurses will, by definition, restrict access and increase costs as the supply diminishes. Likewise, even if an obstetrician decides to recertify in another specialty or practice generally, such a restructuring further disrupts the supply of physicians by imposing both transition costs as the obstetrician retrains and opportunity costs given the obstetrician’s potential to continue practicing in his or her chosen specialty.

These preventable supply-reduction outcomes are not consistent with goals (shared by liberals and conservatives alike) of constraining costs, increasing access, and improving quality in health care. If those shared goals truly are important, then conscience protection is a relatively simple policy to maintain the supply of needed health care workers: first do no harm.

Michael A. Fragoso is a student at Notre Dame Law School where he is President of Jus Vitae.  This piece was adapted from his Note, Taking Conscience Seriously or Seriously Taking Conscience?: Obstetricians, Specialty Boards, and the Takings Clause, 86 Notre Dame L. Rev. 1687 (2011).

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But in my capacity as Chair of the Task Force on Conscience Protection at the Witherspoon Institute, I will join the chorus.

In a piece for the October 5 New York Times Opinionator titled “Refused and Confused,” Ms. Greenhouse attacked the Witherspoon Institute’s Task Force on Conscience Protection for its recent statement against narrow religious exemption clause of a mandate of the Department of Health and Human Services (HHS). The mandate requires nearly all health insurance plans not only to cover contraceptives, sterilization, and some drugs acting as early abortifacients, but also to do so without any co-pays.

Greenhouse’s framework is illuminating: She conceives of healthcare as, first and foremost, the purview of government. Healthcare dispensers, therefore, are all “public health workers,” who really have no choice but to do what the state commands. Analogizing all medical providers to state officials, she approvingly quotes New York Governor Andrew Cuomo’s dismissive response to a state clerk who conscientiously objected to facilitating same-sex marriage: “When you enforce the laws of the state, you don’t get to pick and choose.” This should frighten not only all healthcare providers and institutions founded upon or guided by religious or ethical principles, but also every citizen who wishes to find a doctor or institution that is motivated first and foremost by respect for all human life, to provide his or her personal healthcare.

In her haste to condemn those who would threaten her view of progress (which most certainly encompasses what she calls the “sexual revolution”), Ms. Greenhouse also gets a few things wrong. Some of her factual errors are small, like the name of the group hired to “advise” HHS about the contents of “preventive services” for women; but some of her errors touch on crucial matters, like the number of states with similarly narrow conscience clauses. As to the latter, Greenhouse opines that “the administration’s rule simply mirrors the policies of many states, and represents no significant departure.” The truth, however, is that only three states, California, New York, and Oregon, have drafted religious exemptions similar to the HHS exemption, so as to exclude the maximum number of religious institutions from conscience protection. Indeed, no state’s contraceptive mandate is as sweeping as the proposed HHS rule, because none applies to all plans and includes both so-called “emergency contraceptives” and sterilization. (A memorandum from the U.S. Conference of Catholic Bishops’ General Counsel to HHS revealingly details the law of each and every state on this subject.)

Ms. Greenhouse also refuses to admit that drugs marketed as “morning-after pills” or “emergency contraception” can act to destroy fully formed human embryos, and are thus more truthfully called “abortifacients.” According to FDA-approved label for one such drug called ella, not only is “use of ella … contraindicated during an existing or suspected pregnancy,” but while the “likely primary mechanism of action … is … inhibition or delay of ovulation … alterations to the endometrium that may affect implantation may also contribute to efficacy.” In lay terminology, ella may prevent the union of sperm and egg, but it may also render the lining of a woman’s womb hostile to the implantation and nurturing of the now-formed human embryo.

At the very least, reasonable feminists ought to find themselves in agreement with Germaine Greer, who opined in her book The Whole Woman:

These days, contraception is abortion, because the third-generation Pills cannot be shown to prevent sperm fertilising an ovum. …. Whether you feel that the creation and wastage of so many embryos is an important issue or not, you must see that the cynical deception of millions of women by selling abortifacients as if they were contraceptives is incompatible with the respect due to women as human beings.

Ms. Greenhouse’s opinion that emergency contraception does not pose any threat to developing embryonic humans is not based in fact and, as Greer’s position illuminates, does a disservice to women.

Ms. Greenhouse saved her most withering critique for the Witherspoon Institute’s Task Force, which dared to question the wisdom of the federal government’s stepped-up birth-control campaign. Ms. Greenhouse writes:

The Witherspoon Institute, a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J., has numerous objections to what it calls “the radical nature of this looming invasion of religion liberty.”

… The deeper objection emerges from the final paragraph of the Witherspoon task force’s four-page statement: the real problem turns out to be “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, an objection to birth control as affirmative federal policy. In the year 2011, with half of all pregnancies unintended and with countless tears, both crocodile and sincere, shed over the fact that nearly half of those end in abortion, we are still, amazingly, re-fighting not only the birth control wars but the sexual revolution itself. The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Needless to say, the Witherspoon Institute is happy to accept Greenhouse’s compliments about our “leading role” and “intellectual” character. We would, however, have to decline political labels, as our scholars come from a variety of political backgrounds, and devote themselves strictly to exploring the moral foundations of free and democratic societies, and to seeking solutions to contemporary problems through a variety of research and educational ventures. We pay a great deal of attention to data and reasoned argument, and not to political positions.

The data relevant to the relationship between the federal government’s birth control programs and rates of nonmarital births are straightforward: Since the federal government began its aggressive campaign to provide free or low-cost birth control to millions of Americans in 1970 (with the “National Family Planning Program,” known as Title X of the Public Health Service Act), rates of nonmarital births have grown, not declined. In 1970, the number of unmarried births per 1000 women of childbearing age was 26; in 1980, it was 29; in 1990, it was 44; in 2005, 47; and in 2008, 52.5.

The Department of Health and Human Services summarized the data between 1960 and 2000 as follows: “Nonmarital births as a percent of all births have increased among teens of all ages and across all racial and ethnic groups since 1960. … and among women of all ages.” Rates were 5.3% in 1960, 11% in 1970, 18% in 1980, 28% in 1990, and 33% in 1999. Today, nonmarital births are at an all-time historic high of 41%. These rates persist, while the availability of birth control has expanded exponentially among women of reproductive age. According to the Centers for Disease Control, for example, as of 2004, 89% of sexually active women of reproductive age who are “at risk” of becoming pregnant use contraception, and 98% have used it in their lifetime.

It is tempting to sympathize with those who assumed that birth control adopted as a massive government policy would work in the same way as an individual decision to use birth control—to prevent pregnancy. It is even possible that those taking this view genuinely hoped to lower our nation’s high abortion rates. In the end, however, such a view relied on the false presumption that if you “take the baby out of sex,” you don’t change the incentives in the sex and mating markets. Of course these change. The leading economics paper on the subject, authored by Nobel Prize-winning economist George Ackerlof, with Janet Yellen and Michael Katz, concludes:

In the old world, before the sexual revolution, women were less free to choose, but men were expected to assume responsibility for their welfare, an expectation that was more often fulfilled than breached. Nowadays women are freer to choose, but men are affording themselves the comparable option. In the model we present, the man reasons: “If she is not willing to obtain an abortion or use contraception, why should I sacrifice myself to get married?” This model accurately predicts a decline in shotgun marriage: with abortion readily available, many relationships that previously ended in shotgun marriages now end in abortion. When, instead, the woman carries the baby to term, the man can also rationalize remaining single. The model also realistically predicts a decline in the fertility rate (see Wilson and Neckerman [1986]) and an increase in the out-of-wedlock birthrate.

Greenhouse need not fear that the Witherspoon Institute, or others who question further government emphasis on birth control, are seeking to turn back the clock on women’s marvelous progress over the last half-century. This is emphatically not the case. But as for highlighting the faulty premises and poor outcomes of “birth control as preventive medicine”—let the dialogue begin. Whatever the founders of this policy first believed or hoped for, it is time to look at the evidence. A new approach is needed, not a doubling down on failure under the guise of “preventive medicine.”


Helen Alvaré is an associate professor at George Mason University School of Law and a Senior Fellow of the Witherspoon Institute.

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The new research reports the findings of three surveys in which thousands of parents and hundreds of siblings and individuals with DS themselves, were questioned about what it is like to be affected in one way or another by DS. Ninety-nine percent of parents said they loved their child with DS and 97 percent were proud of them; only 4 percent regretted having their child. While 4 percent of siblings would “trade their sibling” with DS, 96 percent indicated that they had affection toward their sibling with DS, with 94 percent of older siblings expressing feelings of pride. Finally, although 4 percent of individuals with DS expressed sadness about their lives, 99 percent said they were happy with their lives and 97 percent liked who they are.

Caplan believes that most mothers will still abort, even after this research has been released, simply because it is a fact that, currently, most mothers do abort following a prenatal diagnosis. This fact, however, does not support Caplan’s callous conclusion that “Down syndrome is almost universally seen as something to be avoided.”

The most recent studies find that there are more babies than ever being born with DS in the United States. Moreover, there are hundreds of families on waiting lists to adopt a child with DS. As for the high percentage of mothers who terminate, that does not support the conclusion that they are seeking to avoid DS.

Certainly some are, but study after study has found that up to half of all women accepting prenatal testing did so without making an informed decision, and that half did not expect they would have to decide whether to abort following a prenatal diagnosis. To his credit, Caplan recognizes that prenatal testing can result in uninformed and unexpected decisions to terminate, due to medical professionals and general society often having “nothing good at all to say” about DS. Indeed, one study has found that almost a quarter of physicians actively urge abortion, or emphasize the negatives about DS in order to encourage it. Even for those committed to non-directive counseling, a majority of physicians and genetic counselors have said that they would abort following a prenatal diagnosis for DS, which no doubt affects how a diagnosis is presented. Other recent studies also have found that a significant percentage of adults, youths, and physicians still hold outdated views about DS and would prefer that children with DS were segregated from, rather than included in, the community and typical classrooms. Therefore, those who choose to abort often are seeking to avoid an inaccurate, uninformed, and overly negative view of a life with DS, which is not supported by the current research.

Caplan laments that this “climate for having kids with Down syndrome, happy though they may be, is not good.” But Caplan’s own words contribute to maintaining this lamentable climate.

Caplan writes as though aborting a fetus somehow avoids Down syndrome. An abortion will prevent a child from being born, but it will not prevent that child from having DS; DS occurs at conception. Caplan ends his column by stating that “an abortion for medical reasons is a highly personal decision.” Yet, there is not a medical reason for aborting because of a prenatal diagnosis for DS. DS does not pose a risk to the health of the mother or the child. (Caplan refers to heart and stomach defects that some children with DS have, but these can now almost always be treated surgically.)

Nevertheless, the climate of ignorance about, and prejudice against, DS does exist, which is why this new research needs to be shared with the medical community and with expectant parents. While Caplan calls for this, he is simply wrong to assume that sharing this information will not make a difference. The most influential information an expectant mother receives is from her physician and from written resources. Physicians should be well-informed about DS and provide accurate written materials to their patients. Ignorance and prejudice persist, however: over 80 percent of medical students are not trained in working with individuals with intellectual disabilities, and almost 60 percent of medical school deans do not believe they should be. Further, while most physicians now offer prenatal testing to all expectant mothers, less than a third provide them with educational materials.

This pervasive, self-imposed ignorance in the administration of prenatal testing for DS is contrary to ethical medical practice because it denies expectant parents the information they need to make informed decisions. The same studies that identified the pervasiveness of outdated views about DS also found that those who knew someone with DS were more accepting of DS, and that was true as well of physicians who knew someone with DS, as compared to those physicians who had not known any. Despite their rising birth rate, those with DS remain an incredibly small minority population. This is precisely why providing information about these new studies is so important, for most expectant parents and their physicians will not otherwise have or understand the positive experience of getting to know a person with DS.

The further significance of the new research is that it addresses the concerns of mothers who have aborted following a prenatal diagnosis. These mothers were concerned that the condition would be an excessive burden on them and their other children, and that DS may be too much of a burden for the child him- or herself. The three new studies directly counter these concerns and more, as they reveal a truth not often considered: a child with DS will almost always be a positive force in the lives of his or her parents and siblings. The studies found that 79 percent of parents felt that their outlook on life was more positive because of their child with DS. For siblings, the response was even greater, with 88 percent feeling that they were better people because of their siblings with DS.

The most recent practice guidelines call for sharing positive stories about DS, and the new research provides physicians with those positive stories. These stories do indeed matter. Kathryn Lynard Soper is the author of Gifts: Mothers Reflect on How Children with Down Syndrome Enrich Their Lives, which is an approved resource by the National Society of Genetic Counselors’ practice guidelines. The introduction to the book’s sequel, Gifts 2, presents compelling evidence of how sharing positive stories can and will make a difference. Soper writes of co-hosting a new parents’ workshop at the National Down Syndrome Congress convention. A woman holding a baby started the Q&A time with the following comment: “This is Grace. I just wanted you to know that if I hadn’t read your book, my daughter wouldn’t have been born.”

Contrary to Caplan’s opinion, DS is not something almost universally sought to be avoided. Moreover, sharing accurate information about DS, the newest of which is overwhelmingly positive, can and will change expectant parents’ views following a prenatal diagnosis. This is in the best interest not only of those who are conceived with Down syndrome, but also of those who are blessed to know them.


Mark W. Leach, Esq., is an attorney in Louisville, Kentucky, where he is pursuing a Master of Arts in Bioethics. He is the founder and chair of the Informed Decision Making Task Force for Down Syndrome Affiliates in Action and was a contributor to Gifts 2. The views expressed are entirely his own.

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The center of the controversy surrounding the report lies in the committee’s Recommendation 5.5, which reads: “Women will have access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.” Supporters of Recommendation 5.5 have repeatedly claimed that its inclusion was based upon the compelling evidence of science and medicine “that greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.”

The Guttmacher Institute, for example, claimed that the recommendations were “developed after an exhaustive review of the scientific evidence.” Kathleen Sebelius, Secretary of HHS, argued that “these historic guidelines are based on science and existing literature, and will help ensure women get the preventive health benefits they need.” Such bald appeals to scientific support highlight the brazenness of the committee’s activism. In using this cover, the committee has attempted peremptorily to label its opponents as anti-scientific.

But when we examine the committee’s methodology, especially as it touches upon Recommendation 5.5, there is ample evidence that the members of the IOM committee did not, in fact, consider the findings objectively. Indeed, we find that the members were ideologically committed to their outcome, and that Recommendation 5.5 is a skewed representation of the relevant science. Regardless of one’s particular stance on the issues at stake in this official mandate, it is a matter of great concern when those who are charged with the protection of our public health neglect that trust in preference to political activism.

The professional credentials of the Preventive Services Committee members are impeccable, but also ideological. Prior to being appointed to the committee, each member held prestigious positions in universities or in other government committees, and they have published over a thousand articles and scientific studies. It would be irresponsible to dismiss their findings with claims of incompetence. The fact that most of the members of the committee have been actively involved in abortion and contraception advocacy groups, however, did not go unnoticed by critics of the committee’s decision. In a letter of July 27, 2011, Michael O’Dea, executive director of Christus Medicus Foundation, wrote to Sebelius, “It is clear that the Institute of Medicine has an agenda. Virtually all of the Women’s Preventive Services committee members are affiliated in some way with Planned Parenthood.” Further research by HLI America has substantiated O’Dea’s concern, revealing that many of the committee members have strong relationships with both Planned Parenthood and NARAL Pro-Choice, and have actively supported pro-abortion candidates for public office.

The vast majority of the committee members demonstrate a more than casual commitment to the goals of the abortion lobby. In fact, according to information available from the public record, these committee members have donated a total of $116,500 to pro-choice organizations and candidates. Public records show that not one of the fifteen committee members has financially supported a pro-life political candidate. This committee was purportedly assembled for the purpose of providing outside, objective, and expert advice to the HHS policymakers. Whatever one thinks of the relevant issues, one would be hard-pressed to argue that this IOM committee is politically nonpartisan.

Of course the political involvement of the members does not necessarily invalidate the findings of the IOM. Nor does support for a pro-choice candidate necessarily indicate an unalloyed loyalty to a cause. Yet the unbalanced makeup of the IOM’s supposedly objective committee—a makeup that does not reflect the distribution of either the lay population or of the medical community in America—should raise questions about the objectivity with which they undertook their mission.

The committee held three “open information-gathering sessions” to receive expert testimony regarding the preventive services that should be mandated and funded. However, nearly all of the invited speakers were known advocates of contraception and abortion on demand. Michael O’Dea notes:

At both meetings, the invited speakers represented organizations which advocate coverage of contraception, without cost sharing of expenses. Those organizations include the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, and the Association of Women’s Health, Obstetric and Neonatal Nurses, Planned Parenthood, The Kaiser Family Foundation and the Society for Family Planning.

Furthermore, there was not one representative from the Catholic health care system, despite the fact that it constitutes the single largest provider of health care in our country. Representatives of the pro-life and pro-family organizations (who were forced to seek permission to speak) were relegated to the brief public comments portion at the end of the day. This relegation is significant, for though the use of contraception by American women during child-bearing years is widespread, support for publicly funded contraception is not. As indicated by a recent Rasmussen poll, 46% of Americans do not support the committee’s recommendation, and only 39% of Americans believe that contraception should be covered free-of-charge. This diversity of viewpoints should have been reflected in the makeup both of the committee and of the speakers invited to testify at the hearings. Instead, there was a built-in bias in support of the provision of contraception, sterilization, and abortion-inducing drugs.

This lack of objectivity was confirmed by Dr. Anthony Lo Sasso, the lone member of the committee who dissented from the IOM report. In a recent interview, Dr. Lo Sasso confirmed that “the standards of evidence that were used and put forward by the committee” fell short of a truly comprehensive and objective analysis of the data, which “allowed the committee to bring about what they wanted.” In his official dissent, Lo Sasso wrote:

The committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy. An abiding principle in the evaluation of the evidence and the recommendations put forth as a consequence should be transparency and strict objectivity, but the committee failed to demonstrate these principles in the report.

This critique, from a member of the committee itself, is damaging to the IOM committee’s credibility. It confirms the cavalier way in which Sebelius’s advisory group used its position to promote an ideology.

Even without the information provided by Dr. Lo Sasso, however, the report itself exhibits its authors’ biases. In support of the report’s claim “that greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally,” only two sources are cited—one of which is a non-peer-reviewed advocacy report. This spurious source was published by the Guttmacher Institute, the former research arm of Planned Parenthood and a strong advocate for abortion and contraception. One reason for this dearth of evidence is simple: Numerous studies show that greater access to oral contraception and emergency contraception does not, in fact, reduce unintended pregnancies or abortion. Such studies were conducted by the likes of Peter Arcidiacono of Duke University and Chelsea Polis of the Johns Hopkins Bloomberg School of Public Health, and have been published in journals including the Journal of Health Economics, Obstetrics and Gynecology, and the Journal of the American Medical Association.

A survey like this reveals that conclusions are far from unanimous regarding the effect of oral contraceptives on unintended pregnancy and abortion rates. However, the report produced by the IOM reflects neither this uncertainty nor the weight of evidence suggesting that access to oral contraception has little to no effect at a population level. The data are homogeneous, however, in regard to emergency contraception, and point to a conclusion directly opposed to that of the IOM committee. All told, the studies reveal that while there are many “professional and editorial opinions” that emergency contraception should be made readily available, and “professional projections” that it could reduce unintended pregnancies, I have been unable find a single study indicating that it is actually effective in reducing unintended pregnancies or abortions in real population groups.

All of this seems to prove Dr. Lo Sasso’s contention about the lack of transparency in the methodology of the report; because the data were “filtered through a lens of advocacy,” they “allowed the committee to bring about what they wanted.” Such selective research is not worthy of the writer of policy or the representative of a nation.

The HHS report’s Recommendation 5.5—“Women will have access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling”—is the only “preventive service” recommendation in the report that involves the administration of drugs and surgeries. As such, one would expect a host of other considerations to arise around it: specifically, concern for the health risks associated with those drugs or surgeries. Very little attention, however, is given in the report to the risks associated with Recommendation 5.5. In the one paragraph in the 210-page report that addresses them, the committee brushes aside the higher death rates of women who smoke and use oral contraception, despite the fact that one in five American women runs this risk. Instead, the report claims that “side effects are generally considered minimal.” Such a sweeping statement demands detailed argumentation and support; instead, at this point, the report’s slim research becomes threadbare. The evidence for the report’s claim consists of three “educational pamphlets” from the American Congress of Obstetricians and Gynecologists (ACOG) and one other dated study.

This unprofessional documentation should alarm the observant reader on either side of the table. The public was repeatedly assured, upon Sebelius’s passage of the mandates recommended by the IOM, that the report was an “exhaustive review of the scientific evidence.” Yet one of the cruxes of the committee’s argument—and one which directly impacts the health of millions of American women—is sustained by educational pamphlets. Interestingly, the pamphlets themselves state that “the average readability level of the series … is grade 6–8.” These promotional brochures do not cite even one study. The report also places a great deal of emphasis on an ongoing study that has not been published and that the committee hopes will show that oral contraceptives can be a primary prevention for ovarian cancer. Selective use of potentially sympathetic findings from ongoing studies is a clear sign of a subjective bias.

The committee should have studied more rigorous peer-reviewed studies concerning the potential negative side-effects of chemical contraception. For years, medical journals have published studies that indicate the deleterious side effects of oral contraception. Peer-reviewed studies published in the most prestigious medical journals indicate that breast cancer risks are significantly higher for oral contraceptive users, particularly those women who begin contraceptive use before their first full-term pregnancy, women who have a family history of breast cancer, and women who smoke. Stroke risk is also much higher for users of oral contraception, with studies showing a 1.5–4.0 times greater risk of stroke in women who use oral contraceptives. Findings indicating a risk for stroke associated with oral contraceptive use have been published in journals that include Journal of the American Medical Association as well as Stroke: Journal of the American Heart Association. Blood clots, too, are a significant risk for women who use oral contraception, as the Physician’s Desk Reference makes clear: “An increased risk of thromboembolic and thrombotic disease associated with the use of oral contraceptives is well established.” Earlier this year, the FDA announced a safety review of the most popular oral contraceptives on the market (Yaz, Yasmin, and Beyaz) in response to recent studies that show that these drugs bring a two-to-three-times greater risk of arterial clots compared to the already high risk associated with other forms of oral contraceptives. Finally, studies prove that oral contraceptive users have a greater risk of heart attack than non-users, and that their arteries develop plaque at a faster rate. If a woman has other contributing risk factors, her susceptibility increases drastically.

Our public health officials have failed us—in the politically uniform committee selected to advise Sebelius and HHS, in the lack of integrity with which it carried out its research, and in the way it has recklessly put the health of millions of American women at risk. The Family Research Council summed up the situation very well: “This decision completely ignores opinion, research and science that do not support a pro-abortion ideology.” Many organizations and individuals have raised similar concerns, but their words have fallen on deaf ears. However, there is compelling evidence that Recommendation 5.5 was all but predetermined, and was motivated by ideology rather than the objective standards of science and medicine or the true health needs of women.

It is, perhaps, not surprising that political maneuvering and ideology have been obstacles to HHS’s purported goal of securing the health of the American people; we do not expect completely disinterested policymaking in our democracy. What is surprising, however, is the audacity with which the committee circumvented professional research practices in order to arrive at the conclusions they held at the outset. The officials of the Department of Health and Human Services are appointed to carry out the research that the general citizenry has neither the time nor skill to pursue; they are not appointed to misguide and misinform. We must be able to trust profoundly in the integrity of those to whom we delegate these important tasks. By misrepresenting the relevant data, the IOM committee and HHS Secretary Sebelius have betrayed the trust of the American people, and have potentially put the health of millions of women at risk.

Arland K. Nichols is the National Director of HLI America, an educational initiative of Human Life International. More information can be found here at http://www.hliamerica.org.

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1. Mandate for Abortion and Contraception

The jointly issued “interim final rule” regarding “preventive health services” requires nearly all private health plans to include coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without co-pays or other cost-sharing— no matter whether the insurer, the employer or other plan sponsor, or even the woman herself objects to such coverage on the basis of religious or moral principles. Women may not receive, and insurers, employers and other plan sponsors may not provide, health coverage that is exclusive of such “services.” Never before has the federal government required private health plans to include such coverage.

Among the FDA approved “contraceptive measures” are drugs that, under certain circumstances, terminate the life of a human being at the embryonic stage of development. At least two of the drugs approved by the FDA under the rubric of “contraception” so function in some cases. They are more accurately labeled abortifacients.^[1] As a matter of basic embryology, the life of the human organism begins with the fusion of gametes—egg and sperm. And according to FDA labeling, “Plan B emergency contraception” (levonorgestrel, also known as “the morning-after pill”)—“may inhibit implantation by altering the endometrium.” In other words, Plan B may make it impossible for the newly conceived human being to embed herself into her mother’s uterine lining—a necessary condition of life support for the unborn child. In such cases, the embryo is destroyed prior to implantation.

Another FDA-approved form of “contraception” known as “Ella” (ulipristal, or the “5 day-after pill”), seems to pose an even greater danger to newly-conceived or even newly-implanted embryonic human beings. Ella is a “selective progesterone receptor modulator.” It may function pre-implantation by rendering the endometrium inhospitable to implantation for a newly-conceived embryo (like Plan B); it may also function post-implantation by depriving a living embryo of progesterone or by destroying the maternal component of the placenta. In both of these manners, Ella functions as an early abortifacient. Indeed, the FDA labeling for Ella states that the drug is contraindicated during pregnancy, citing animal studies showing its capacity to terminate a pregnancy. Furthermore, there is nothing to prevent the off-label prescription of Ella (or its purchase, should it become available, like Plan B, for sale over-the-counter) for purposes of terminating a known pregnancy. In short, the new “preventive services” mandate includes coverage for drugs used to kill an unborn child both before and after implantation. Many institutions and individuals (religious and secular) rightly condemn such killing as a grave injustice.

2. The Religious Exemption

The rule includes a very narrow religious exemption. Houses of worship are almost certainly protected, but all other religious ministries and institutions are almost certainly not. The exemption covers only: a “religious employer” that has the “inculcation of religious values” as its purpose; “primarily employs persons who share its religious tenets”; and primarily “serves persons who share its religious tenets.” Further, the employer must qualify as a church organization under two narrow provisions of the tax code. Religious institutions such as colleges and universities, as well as hospitals and charitable institutions that employ and serve the public (versus only co-believers) will be ineligible. Individuals, and religiously affiliated health insurers are also outside of the scope of the exemption.

Others have made the case to HHS that the religious exemption in the proposed regulations is unprecedented in its narrowness. Indeed, it is. Though copied largely from state laws requiring insurance plans to include prescription contraception, the proposed federal mandate is much more sweeping than any comparable state program. When you add to this picture that the new proposal would include “contraceptives” that act as abortifacients, then the radical nature of this looming invasion of religious liberty finally comes into full view.

The U.S. Catholic bishops—sponsors of the nation’s largest private charities—correctly observe that the new mandate “poses an unprecedented threat to individual and institutional religious freedom.” We would add that not even a Catholic parish’s grade school would be exempt from the new mandate to carry insurance that pays for some early abortions. These schools do not always “primarily serve persons who share [the employing religion’s] tenets.” Particularly in urban cores, Catholic schools might enroll a majority of non-Catholic students, often children from the most vulnerable racial and socioeconomic groups. Further, Catholic schools’ “purpose,” as required by the proposed regulation, is not solely “the inculcation of religious values.” That is one purpose of a Catholic school. But the main or “primary” purpose of a Catholic school is the same as that of any other school: providing an education. Other religious institutions, universities in particular, regard it as part of the core of their mission and identity to be and act in the world as a witness and servant to others, all others, regardless of their beliefs, circumstances, or station in life. This almost always results in the employing and serving of persons who do not share the same faith as the institution’s founders. This vision of ministry and identity, under the proposed rule, would disqualify a religious institution from taking advantage of the religious exemption.

Yet throughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause

Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.

The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. This, apparently, is what the authors of the new regulations intended when they adopted the stringent definition of “religious employer,” drafted by the American Civil Liberties Union (ACLU) in connection with California’s contraception mandate. This is the very same ACLU that recently urged HHS to force all Catholic hospitals to perform abortions under the guise of necessary “emergency treatment.” Recent history demonstrates that many religious employers will exit from the marketplace rather than abandon their mission to offer faithful witness in the course of providing service. Those behind the new regulations must be willing to accept this effect, and perhaps even desire it.

This is revolutionary. Never before in American history has any administration—state or federal—been so willing to force religious institutions out of business. In fact, at our founding, and for a long time thereafter, most education, healthcare, and social services were provided by the churches, not by the government. In most cases public authorities assisted the churches by some form of financial or material aid. Even when, after the Civil War, governments began more earnestly to set up their own schools and to provide some other charitable services directly, the norm remained what it had been: a productive partnership between religious and civil providers, with no preference for any religion and with coercion of no one’s conscience, all directed to the achievement of the common good. This was surely the pattern up to and beyond World War II.

In fact, it was not until the 1960s, and then largely under the influence of Supreme Court decisions imbued with a rabid secularism, that this long partnership came in for wholesale criticism. Only then did American elites begin to think of systematically privatizing religion, of shutting up faith within the walls of family, home, and church. Only in the 1960s did significant numbers of people begin to think that everything public—that is, all that is properly in the civil sphere—should be governmental.

With these proposed regulations, the Obama administration would turn back the clock, not only to this discredited intolerance, but beyond, and toward a repudiation of our whole constitutional and political tradition. The administration would restrict the public square to the government to an extent that would be anathema to the founders, and undreamt-of by any important public figure since.

3. Sexual Expression: The Elephant in the Room

It seems more than a little likely that the degree to which this administration is willing to silence or privatize religion is proportionate to its passionate commitment to the population and sexual freedom agendas of one of the administration’s closest allies, the Planned Parenthood Federation of America (“Planned Parenthood”)—the largest single abortion provider in the United States. It is Planned Parenthood that lobbied strenuously for precisely the coercive outcome represented by these proposed regulations. It is Planned Parenthood whose leadership is closely intertwined with the authors of the Institute of Medicine (IOM) report upon which these regulations are based. And it is Planned Parenthood’s former research affiliate, the Guttmacher Institute, that issued several of the studies cited in the IOM report as the basis of its false claims that easier access to birth control has reduced and will reduce our national rates of unintended pregnancies and abortions. It is also Planned Parenthood that—at a time of national economic crisis—has just received new federal dollars to replace the dollars recently taken from them by state legislatures wary of supporting such a prominent abortion provider.

It is well known that the various religious institutions sponsored by the Catholic Church do not provide contraception to their employees or their clients. The Catholic Church in the United States is also the most persistent and powerful voice against the legalization and normalization of abortion in America today. Its witness on these matters earns scorn from those “true believers” who continue to insist that abortion and contraception are the best response to high rates of nonmarital births and abortions, in the teeth of compelling evidence that both policies are associated with even higher rates of nonmarital pregnancies and abortions due to the manner in which they change the “markets” for sex and marriage. (See, Helen M. Alvaré, Abortion, Sexual Markets and the Law, in Stephen Napier, ed., Persons, Moral Worth, and Embryos: A Critical Analysis of Pro-Choice Arguments, 255, 261ff (2011)). Planned Parenthood is preeminent among such “true believers.”

With these new regulations, the administration has placed itself on the side of the Planned Parenthood worldview: an irrational commitment to unrestrained sexual expression, “insured” by easy access to contraception and abortion, no matter the cost to religious freedom or to the well-being of the adults and children involved. These regulations would enclose behind the walls of sanctuaries any and all dissenting religious voices on the matter of sexual restraint and respect for vulnerable human life. Those who today speak common sense on the matter of sexual restraint—backed by current and credible data—are the very persons and groups who would be silenced. Their reasoned arguments, and the witness of their lives, would no longer be available to those who do not already share their faith. Consequently, while religious institutions will suffer should the current “preventive” health care mandate take effect without amendment, there is a group that will arguably suffer even more: those Americans most in need of viewpoints dissenting from this new federal orthodoxy concerning human sexuality and the value of vulnerable human life.


Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. Gerard V. Bradley is professor of law at the University of Notre Dame Law School. O. Carter Snead is professor of law at University of Notre Dame Law School. They write on behalf of the Witherspoon Institute’s Task Force on Conscience Protection.

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People quite naturally recognize that life is better than death, that the deliberate destruction of life is an evil to be avoided, and that the state has a role to play in preventing suicides. It follows logically from these uncontested (and incontestable) observations that state laws prohibiting euthanasia and assisted suicide are just and efficacious. But, like magicians who use distractions to remove the important object from view, proponents of legalized death have shrouded the inviolability of human life in a mist of confusion. Exposing their ploys is the first step in defeating their efforts to advance the culture of death. Below are three arguments that are likely to be advanced for legalization in Massachusetts. All three are designed to distract and to deceive.

The Alleviation-of-Suffering Ploy

In public, proponents of assisted suicide most commonly characterize assisted suicide as the only hope of relief for “suffering patients” who are afflicted with serious illnesses. This plea is of course designed to appeal to voters’ (rightful, natural) sense of compassion for those unfortunate souls in whose shoes none of us would choose to walk. None of us likes to contemplate what it would be like to be told by a doctor that one has just a few months to live, and that one’s most prominent experience during those final months will be unrelenting pain. And we cannot bring ourselves to judge our neighbor who is forced to face such grim prospects. Who are we to tell the terminally ill patient that she must not end her life a few weeks early, and that she may not avoid the suffering and indignity that attend such horrible illnesses?

Thus, cleverly, assisted suicide proponents use voters’ natural aversion to death and suffering to build support for legalized death. To be against suffering is to be against laws that unnecessarily prolong a life of suffering, the argument runs. To celebrate life is to celebrate what is good and enjoyable in life, not to burden the terminally ill with a dark and unendurable coda.

This is an effective ploy, but it rests upon a bold deception. Assisted suicide is neither necessary, nor actually used, for the alleviation of pain. Indeed, the data show a wide gulf between the public justifications for assisted suicide and its actual use in practice. Oregon was the first state to legalize assisted suicide, implementing its program in 1997. The state’s annual reports consistently reveal that, of those who seek and obtain assistance in suicide, only a small fraction cite “inadequate pain control or concern about it” as a reason for their choice. Indeed, hauntingly, more patients are worried about being a “burden on family, friends/caregivers” than are concerned about pain.

Even these data do not tell the whole story; Oregon lumps those who are in pain with those who are merely concerned that they might be in pain at a future date. But few terminally ill patients need to resort to suicide in order to alleviate actual pain. Tragically, legalization in Oregon appears to have decreased patient access to palliative care. Of the initial 142 cases of assisted suicide in Oregon, only 13% were referred for palliative care consultations, and studies reveal that the quality of palliative care in Oregon has declined since assisted suicide became legal.

A much more common motivation than pain management appears to be simple clinical depression. In 2006, the Royal College of Physicians released a statement revealing that patients who want to die will change their minds—will choose life—after they are treated for depression in 98% to 99% of cases. Two researchers writing in the Michigan Law Review also concluded that when patients are treated by physicians who listen to them, treat their depression, and manage their pain, “their wish to die usually disappears.” In light of these facts, it is striking that only one of the sixty-five assisted suicide patients in Oregon in 2010 was referred for psychiatric evaluation. In 2009, none was referred.

The Unnecessary Prolongation Ploy

A second favorite ploy, related to the first, is to conflate prohibitions against assisted suicide with extreme measures to keep people alive. Though legalization proponents trade on fears of being artificially sustained after one’s time has come, prohibiting assisted suicide is not the same as forcing people to live beyond their time. To affirm that life is always worth defending from attempts to destroy it is not to claim that one should always make efforts to lengthen life.

Nor does respect for human life entail that the terminally ill must bear up stoically under extreme pain. Showing respect for all persons regardless of their condition or circumstances means providing needed medical care, including palliative care, when the terminally ill are in their final weeks and hours. That some forms of palliative care hasten impending death is not a reason to condemn its administration. The purpose of administering palliative care is not to kill but to relieve pain. The physician who administers palliative care is no more culpable than the physician who attempts to save a life by performing a risky surgery.

Medical practice involves risk and, sometimes, death. The line that we must ask a physician not to cross is the line at which he adopts the patient’s death as his purpose. That action is inherently different from performing a risky medical procedure; it makes the physician a different kind of person, one who is unfit to practice medicine and who harms himself as well as others.

The Personal Autonomy Ploy

The most common motivation for assisted suicide patients is a desire for personal autonomy, to control the time and manner of one’s own death. In Oregon, this is the most commonly cited concern of assisted suicide patients, and many scholarly advocates of assisted suicide admit that this is the real justification for legalization. The desire for control is understandable, but suicide is a means of control that causes real harm not just to the person who destroys his own life but also to all those with whom he is in community.

Proponents of legalization invoke a radical conception of personal autonomy. The idea is that each individual person makes the value of her own life by choice. When an individual ceases to value her own life, when she no longer prizes those treasures that life enables her to enjoy, she ought to be free to end her life.

People do not make their lives valuable merely by choosing to live. If this were the case, then the lives of small children and senile adults would have no value and would be unworthy of protection in law. As a matter of fact, myriad laws protect human life at various stages of human development, even in states—Oregon and Washington—that permit assisted suicide for the terminally ill. These laws do not discriminate against the very young or the very old, or against those who ascribe the least value to their own lives. States invest resources in suicide prevention and privilege citizens to prevent suicidal acts, by force if necessary. None of these laws provides for weighing the instrumental value of the life being saved.

So even in states that permit assisted suicide, the law reflects our understanding that life has value, regardless of the conditions in which it is lived. Laws preventing suicide preserve the communities of which the suicidal person is a part. The personal autonomy ploy rests upon the deception that suicide affects only the one who commits it, and that this individual alone should have a say in the matter. But suicides are not purely autonomous acts. Just as the family and neighbors of each person recognize the intrinsic value of that person, the family and friends of a suicide realize the irremediable loss that suicide causes.

Suicide should not be inflicted upon anyone. To assist its commission is to do violence to the very fabric of civil society. For the sake of doctors, their sick patients, and the communities in which doctors and patients live, Massachusetts and Montana should strengthen their legal commitments to protect the sick and suffering.

Adam MacLeod is an Associate Professor at Faulkner University’s Thomas Goode Jones School of Law.

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Discussions of HHS’s new regulation have focused on the required availability of free contraceptive services under the Patient Protection and Affordable Care Act (PPACA). The regulation is the result of HHS’s adopting, in its entirety, the Institute of Medicine’s (IOM) report on Clinical Preventive Services for Women. Buried in the IOM report is the recommendation for no-cost well-woman visits; these visits include prenatal care—and thus prenatal testing for “genetic or developmental conditions.” The regulation was issued as part of the PPACA’s coverage of preventive services. This prompts the question, how does prenatal testing prevent Down syndrome?

The IOM report defines preventive services “to be measures . . . shown to improve wellbeing, and/or decrease the likelihood or delay the onset of targeted disease or condition.” Down syndrome occurs at conception. Prenatal testing simply identifies whether a pregnancy is positive for Down syndrome—a prenatal diagnosis after which most women choose to terminate their pregnancy. A prenatal test does not decrease the likelihood of Down syndrome in a person; it does allow for a decreased likelihood of a person with Down syndrome surviving beyond the womb. If this is how HHS is justifying prenatal testing for Down syndrome as preventive care, then HHS has ushered in a program meant to target future children like Juliet.

The targeted elimination of people with Down syndrome is, in fact, the goal of other countries that have adopted nationwide prenatal testing programs—a goal some other countries are now realizing. Indeed, according to the Copenhagen Post, Denmark “could be a country without a single citizen with Down’s syndrome in the not too distant future,” due to its nationwide prenatal screening program, in place since 2004.

Perhaps the HHS is not purposefully trying to sneak in a modern-day eugenics program to eliminate Down syndrome by regulation. It is likely that the IOM report relied on professional guidelines that recommend the offering of prenatal testing for Down syndrome. Actual experience, however, has shown that such tests do not “improve wellbeing”—certainly not for the aborted child, but also not for the expecting parents.

Robert Resta, a Genetic Counselor, notes in August’s American Journal of Medical Genetics that “there is very little empirical evidence that prenatal knowledge improves medical, developmental, emotional, or adaptational outcomes.” Further, studies have found that prenatal testing increases the mother’s anxiety, regardless of the test results; that women often do not make informed decisions about accepting prenatal testing or decisions made after a diagnosis and that, when abortion is the chosen response, a significant number of women experience post-traumatic stress.

The lone dissent to the IOM report by a committee member makes the point that clinical guidelines “were never intended to provide a basis for insurance coverage determinations; they are intended as guides to physician practices.” Yet, if the IOM’s incorporation of such guidelines is the HHS’s justification for covering prenatal testing, then why does HHS not provide for the other information required to accompany prenatal testing?

The IOM report states that informed decision-making “is structured to give an individual all the information needed to choose from among different clinical options, such as whether to undergo genetic testing.” Professional guidelines require that physicians be well-informed about Down syndrome, offer accurate information, and recognize that parent support organizations can be very helpful. This summer, the National Society for Genetic Counselors and the American Academy of Pediatrics required that this balancing information be part of prenatal care. Both further note that families “benefit from hearing a fair and balanced perspective, including the many positive outcomes of children with Down syndrome and their effect on the family.”

The need for this information is so apparent that, in 2005, two senators from opposite sides of the abortion issue, Senators Ted Kennedy and Sam Brownback, co-sponsored legislation that recognized the need to provide accurate, balanced information and support by parent organizations. In 2008, the Prenatally and Postnatally Diagnosed Conditions Awareness Act was signed into law, but it has yet to receive any appropriations. Similarly, the HHS regulation only requires coverage of the testing itself, but says nothing about covering the provision of proper training, accurate written materials, or support to or through parent organizations—things that could, in fact, improve the parents’ and child’s wellbeing after receiving a prenatal diagnosis.

It seems hard to believe that Congress and the President meant for the PPACA to institute a national prenatal screening program that targets Down syndrome and also fails to provide all of the required information to expectant mothers. Sen. Mikulski introduced the provision for preventive services for women, yet she was also the lead sponsor of Rosa’s Law, a law that replaces “mental retardation” with “intellectual disability” in federal publications. Rosa’s law was named after one of her constituents, who, like Juliet, happens to have Down syndrome. Further, given that HHS’s regulation not only encourages prenatal testing’s discrimination against Down syndrome, but also disrespects a woman’s exercise of informed choice, it is unlikely that members of the bipartisan Congressional Down Syndrome Caucus would allow the regulation to remain in effect.

Prenatal testing for Down syndrome should not be labeled as preventive medicine—an inaccurate and misleading description of a procedure that may prevent Down syndrome births, but certainly does not prevent Down syndrome. A regulation should not be allowed to target a portion of our society for elimination without public debate by accountable elected officials. If the regulation is to remain in place, then additional funding should be provided for all the information required to respect a woman’s choice following a prenatal diagnosis. The President and the Congress should see that the new HHS requirements for preventive care expressly exclude coverage of prenatal testing for Down syndrome unless and until there is public debate and balanced funding for the needed resources. You can help them do that by leaving a comment on this new regulation here.

Mark W. Leach is an attorney from Louisville, Kentucky. He serves on the Board of Directors for Down Syndrome of Louisville and Down Syndrome Affiliates in Action, a trade association of local parent support organizations. The views expressed here are entirely his own and not to be attributed to any associated organization.

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But in fact, the most important public questions—including all of those listed above—combine elements of the philosophical and the practical. All of public policy is about setting priorities, which must always be done with an eye to both principle and practice, and every moral choice in politics must somehow be implemented in practical terms.

Nowhere is this inevitable intertwining of the moral and the practical more evident than in the health-care debate that has been raging in America for the better part of two decades, and that has been especially prominent in the past two years. Simply put, the health-care debate presents us with a moral imperative to solve an economic problem. The moral character of the imperative does not negate the economic character of the problem (and therefore the need for an economically viable solution), while the economic character of the problem can never blind us to the moral weight of the matter. This combination of the moral and the economic is what makes the health-care dilemma so challenging, but awareness of the combination helps us to distinguish among the solutions offered by the left and the right.

The moral imperative we confront in the health-care debate presents itself in two distinct facets. First, there are the 50 million Americans who lack health insurance today, and are therefore potentially without access to routine and chronic care. To be sure, some of them have chosen not to buy insurance, though they could afford it. Some are in the United States illegally, and so do not qualify for programs that otherwise assist the poor. But several tens of millions are simply unable to afford coverage. They are not poor—the poor are insured by the Medicaid program. They are not elderly—the old are insured through Medicare. They are, for the most part, lower middle-class people who do not receive insurance through an employer (as most American families do) and cannot afford to buy it on their own. And their numbers have grown in recent years because the cost of insurance has been growing far faster than wages.

Meanwhile, the second moral facet of the problem is the immense burden that our health-care entitlement programs present for the nation’s future. The numbers are depressing and staggering. A decade from now, our national debt will be as large as our entire economy—a level of debt we have not seen since the immediate aftermath of the Second World War—and (unlike the late 1940s) it will be on a trajectory of persistent ballooning growth. By 2035, according to the Congressional Budget Office, the debt will be twice the size of the economy and still expanding quickly. The resulting much-diminished economic growth will cast a great shadow over the prospects of the next generation, which will be unable to experience anything like the prosperity that Americans have taken for granted over the past 60 years. This is a moral problem at least as much as an economic problem—it is a failure of the present generation to meet its charge to the future.

Our health-care entitlement programs are by far the foremost cause of this coming explosion of debt. In its latest long-term projections, published in June, the Congressional Budget Office reported that, between now and 2050, federal spending on health-care entitlements (especially Medicare and Medicaid) will nearly triple as a percentage of the economy, while all other federal spending (including defense, discretionary spending, even Social Security—everything but interest on the debt) will actually decline as a share of the economy. Health-care entitlements are, in short, entirely responsible for our long-term debt problem.

These two moral facets of the health-care debate at first seem to contradict one another. More and more Americans are uninsured, even as the cost of paying for our existing health insurance programs is growing so large that it risks crushing the economy. So does the government need to do more or less to provide health insurance? Democrats in the health-care debate tend to emphasize the first of these problems, and so argue that more public spending on coverage is needed, while Republicans usually focus on the second, and so devise ways to cut health-entitlement spending. But wouldn’t focusing on one problem make the other worse? Is there a way to address both at once?

To answer that question, we need to grasp the underlying economic problem that explains both moral facets of the issue: the exploding costs of health coverage and care. The cost of health care has been growing far faster than the general inflation rate for decades. Last year, health-care costs grew by more than 7%, while inflation was below 2%. That means that the cost of insurance premiums is rising far faster than people’s wages, leaving more and more people unable to pay for coverage. And, combined with demographic trends that mean a greater share of the population is over 65 than ever before, it means that the costs of our health-care entitlements are growing far faster than tax revenues, leaving the government more and more in debt.

The health-care debate is therefore properly understood as an argument about how to restrain the growth of health-care costs. The moral dilemmas that compel us to act force upon us an economic question: what can we do to keep costs from growing so quickly without undermining the quality of care and people’s access to it?

The debate now being fought in the political arena does in fact arrange itself along two different sets of answers to that question—answers grounded in economic premises, but which send us back toward the realm of moral analysis and judgment. The two answers derive from two different views of what makes for economic efficiency. Clearly, the problem with our health-care system is that it is grossly inefficient. But why?

Liberals tend to believe that our system is inefficient because it is chaotic and unfocused—there are too many players doing too many things in too many different ways, and none is moved by a concern for the public interest, so the system is a costly mess. It would be much more efficient if it were made more orderly—a system directed to the public good, governed by a single set of rules, managed by knowledgeable experts who understand what kinds of care are cost-effective, with just a few large providers of insurance (if not one huge provider) using their weight in the market to compel lower prices and more efficient delivery of services.

This vision is roughly what the health-care law enacted last year aims to make a reality: to restrain the growth of health-care costs by putting the health-care sector under tighter supervision and making the government a larger buyer and provider of coverage. It involves a vast expansion of Medicaid, more price controls in Medicare, and a system of highly regulated state insurance exchanges that will gradually transform the private insurance sector into a system of public utilities.

Conservatives tend to believe that our system is inefficient because it is too opaque and over-managed—that the fee-for-service structure of Medicare (which pays doctors by how much they do rather than how efficiently they work), the design of Medicaid (which allows state officials to increase spending at the federal government’s expense), and the powerful tax incentive for employer-provided insurance (which prevents consumers from making purchasing decisions and so prevents the emergence of a real market) all make for a badly broken health sector incapable of finding paths to efficiency in the ways that a market economy normally does. What is needed, they say, is a real market in which insurers compete for consumers and therefore have a reason to offer an attractive product at a low price, which would cause them to work with health-care providers to find more efficient, innovative ways of organizing their work.

That is roughly what most conservative health-care proposals aim to do: to restrain the growth of health-care costs by giving consumers real choices and making the health sector more competitive and therefore more innovative. This change involves turning today’s health-care entitlements (including the tax preference for employer-based coverage) into a system of premium-support subsidies to be used in a highly competitive private insurance market in which insurers and health-care providers have broad latitude to experiment with different avenues to efficiency and quality.

In other words, the left argues that experts know how to produce efficiency and that centralized control is the best way to empower experts, while the right argues that markets best discover paths to efficiency and that consumer choice and competition offer the best operating strategies for markets. That difference is the essence of the health-care debate.

But that does not mean that the moral significance of the health-care debate is only apparent or relevant in defining the problem, and not in assessing solutions. The two kinds of solutions offered differ not only in their economic assumptions but also in their moral consequences.

Centralized management of the health-care sector inevitably invites an explicitly utilitarian approach to comparing the worth of different people’s lives as a matter of public policy. Deciding what treatments to cover for which patients involves the government’s determining whose lives are worth living and whose are not. Princeton’s Peter Singer, an unabashed advocate of such public rationing, explained in the New York Times a few years ago that such an approach would, for one thing, require the government to value the lives of the disabled less than those of everyone else—a quadriplegic, for instance, should be valued at roughly half the worth of a healthy active person. “Some will object that this discriminates against people with disabilities,” he wrote, but that’s only because we begin from the premise that all human beings are equally valuable. That can’t be true, Singer argued, since the very fact that we seek cures for illnesses and disabilities proves that we believe such conditions make life less worth living. He concluded: “Disability advocates, it seems, are forced to choose between insisting that extending their lives is just as important as extending the lives of people without disabilities, and seeking public support for research into a cure for their condition.”

This kind of embarrassing sophistry is precisely where public control of the health-care system, and the resulting public rationing of treatment, must lead—to a rejection of human equality as a principle guiding government policy. Centralized bureaucratic administration of coverage decisions leaves no room for moral diversity (so, for instance, Obamacare compels everyone to fund abortion, despite some cheap tricks employed to make it seem as though money is not fungible). It leaves no room for individual decisions, and fewer ways for families to weigh their priorities and make unavoidable but difficult judgments humanely and compassionately.

Of course, any system of health insurance has to involve decisions about what to cover and pay for—and, in that sense, what to ration. But an underappreciated virtue of the market is that it puts such decisions far closer to the ground, and so to the people involved. Allowing for a wide variety of insurance options means giving people more choices and more power, and therefore also allowing families far greater freedom to choose among treatment options with their doctors. Hard choices will still need to be made, but having more of them made by families and physicians with some power to choose is vastly better than having all of them made by distant bureaucrats with the power to impose.

Believing in equality does not mean pursuing one-size-fits-all public policies. On the contrary, central planning and command-and-control administration too often require a betrayal of equality. Public rationing is not private rationing writ large; it requires an explicit rejection of our most fundamental national premise. Enabling a private market—backed with subsidies to allow those with lesser means to choose among options for themselves—would not only avoid the economic inefficiencies of central planning; it would also reduce the moral enormities of public rationing.

Of course, a more market-based approach would only reduce, not eliminate, such problems. In a competitive health sector, some rationing decisions would be made by insurance companies, not by families, especially in cases where the family’s means are limited. Having insurers make such decisions is marginally better than assigning them to a panel of distant public officials—since the insurers are more directly answerable to their consumers and more directly in touch with the particular physician on the spot—but only marginally so. Well-conceived public policy could significantly constrain the problem and expand the range of options available to families and individuals, but it could never eliminate it.

No one could argue that the market is a perfect solution to the economic inefficiencies of the health sector or to the moral travails of medical decision-making. But in both cases, it is easy to see how a regulated but highly competitive market backed by subsidies is a far better solution than central planning.

It is not by coincidence that the fiscal and moral concerns that define the health-care debate are both best (if always imperfectly) addressed by market-based solutions. For all the tension between market capitalism and traditional morality, both begin from a belief in the essential equality of all and the profound freedom and dignity of the human individual. Social and fiscal conservatives hang together—and jointly oppose the technocratic collectivism of the left—for far more than pragmatic reasons.

Seeing that deeper case for conservatism requires not only reflection on first principles but also careful examination of the complicated questions that underlie our most divisive and prominent public-policy debates. Those debates always combine moral with practical elements, and so always require the engagement of citizens—and the guidance of leaders—armed with principle and prudence alike. That combination is just what we should put to use as we consider who our next president should be.

Yuval Levin is editor of National Affairs and a fellow at the Ethics and Public Policy Center. This essay is part of the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond”
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to its Survival”
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery”
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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Copyright 2011 the Witherspoon Institute. All rights reserved.

Many religious leaders and academics worried that the new healthcare regulations would inadequately address the conscience concerns of religiously affiliated healthcare institutions. The worries about conscience were well-founded. While the new regulations provide exemptions for religious healthcare institutions, those exemptions are exceedingly narrowly drawn, and only apply to those institutions that primarily employ and serve those who share the religious tenets of the institution. This requirement will, it seems, effectively rule out most religious healthcare facilities, which, after all, serve all comers, and not just co-religionists.

So, how should religiously affiliated institutions respond? They should, no doubt, continue to argue that the regulations violate freedom of conscience and attempt to expand relevant exemptions. But they must not overlook a more fundamental problem. By treating the provision of contraceptives as a necessary part of the political common good, these regulations create a political entitlement to contraceptives, a right that has never been part of our collective self-understanding as a nation.

The ground for claiming a political right to contraceptives and sterilization comes out of a more general idea underlying the recent attempt at reforming healthcare, which is this: it is reasonable to make affordable healthcare, including preventative care, a political entitlement for people who are unable to obtain it themselves. That idea strikes me as fundamentally correct. We can grasp that healthcare, broadly defined as access to medical interventions, drugs, and technologies, is essential to the preservation of life and bodily integrity, and proper organ functioning. Death, not far from those who are seriously diseased or disabled, brings an end to human existence and well-being—the focal points of health. And to be healthy enables one not only to thrive physically, but also to pursue all kinds of other opportunities. So health, and thus healthcare, is centrally important to human life.

If one recognizes the importance of healthcare for the sake of his own health, then he should also see its importance for the lives of all other human beings. Thus, our ties to other human beings, whether by kinship, nationality, or even physical proximity (think of “Good Samaritan” stories), put certain obligations on us to do what we can whenever these beings suffer urgent health-related needs. The first obligation of parents, for instance, is to care for their children’s health; and it is the obligation of neighbors and passersby everywhere to do what they can for those in urgent need.

But often, little can be done. In a world of expensive technologies that require special skill for their use, we can best meet our already existing obligations to other human beings through socially cooperative acts that distribute benefits, burdens, and obligations fairly and effectively. In some cases, the most efficient way to distribute these benefits, burdens, and obligations may be state involvement. If this is true, then in those cases, the state must take action.

Efficiency requires a concern for prevention: if small steps like vaccinations can stop future epidemics, then we should take those small steps. And if only the state’s help allows us to do this effectively, then the state should help. So, based on their efficiency, vaccination programs backed by state requirements could be preferable to programs asking only for voluntary compliance.

Now, wherever we judge that we have obligations to provide care and that the state’s assistance best helps us meet those obligations, then in some way, we have identified a right to healthcare – a human need of such gravity that others are obligated to come to provide aid. We have also begun to translate that right into a political right, an entitlement.

Yet we should be cautious in deciding to make a healthcare need into a healthcare right. To start this process of translation surely requires the following conditions:

• The identified need must be a genuine healthcare need.
• It must be a need of great gravity and urgency.
• It must be a need that requires the state’s participation in serving it.

Though these three requirements may not be the only preconditions for a healthcare need to become a healthcare right, if the state fails to meet any one of them, but asserts a healthcare right and sets up structures to serve that right, then the state either acts contrary to truth or acts outside of its authority, and thus unjustly.

The state would act contrary to truth if it smuggled into the general right to healthcare some non-health related benefits. In the case of contraception and sterilization, one can convincingly argue, first, that neither addresses an illness or a malfunctioning organ, and second, that the ability to become pregnant is in fact a sign of good health. So what disease is truly being prevented with these mandatory “preventative” care procedures?

The state would act outside its authority if the goods it sought were not goods that it is part of the state’s mandate to serve, or if the state’s involvement were not more efficient than the activity of citizens and their more local efforts at cooperation. The state simply has no mandate to be involved directly in the provision of every possible good to its citizens. In some cases, the good is, in some ways at least, in principle beyond the scope of the state: right religious worship, for example. In other cases, the state would be treating its citizens as children, doing for them what they were both obliged and able to do for themselves.

The HHS decision treats as a health care problem the social and moral problem of unwanted and unplanned pregnancy. And this is both a social and moral problem, it should be stressed: out of wedlock pregnancy is a widespread phenomenon, and is often devastating for the children so conceived, born, and raised. It is an injustice to them that their parents should be so reckless in their sexual choices. But injustice is not illness, and treating it as if it were is both untruthful, and dangerous, by addressing a moral problem as if it were subject to a technical fix.

Of course, the state is not simply looking to the serious social suffering that comes about from sexual irresponsibility; it is also looking to the benefits of free sexual activity without the threat of children, benefits widely desired by men and women throughout the West. Widespread availability, and now cost-free provision of contraceptives brings us one large step closer to a widely held goal of complete sexual liberation for men and women, a goal the achievement of which will be seen by many as a tremendous personal and social good.

Does achieving such a goal really fall under the authority and obligation of the state? Is the state, which exists to allow all of its citizens to pursue human well-being by assisting citizens where they are incapable of assisting themselves – by coordinating social action, by defending the nation against internal and external marauders, and by providing welfare benefits to those who would otherwise grapple with serious deficiencies to their well-being – is that state obligated to bring about the sexual revolution by requiring that all citizens, even those who would reject the sexual revolution as directly contrary to their understanding of human good, join together to treat that revolution as a funded political right?

That we even need to ask this question shows just how radical and far-reaching these new requirements are.

Many believe that when the pill was created in the twentieth century, its existence signaled that we were radically rethinking the goals of medicine; we turned away from concern for bodily health and towards something more focused on patient desires. These new requirements from the HHS threaten to usher in a similar change to our self-understanding as a nation.


Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His book Biomedical Research and Beyond: Expanding the Ethics of Inquiry (Routledge, 2008) has just been released in paperback. Tollefsen sits on the editorial board of Public Discourse.

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Upon reflection, this emptiness provides an insight into one of the great paradoxes of medical practice: On the one hand, medicine is a wonderful profession that provides the practitioner with enormous satisfactions; physicians practice into old age, giving up the art only with the greatest reluctance. On the other hand, medicine is a profession intermingled with tragedy. Men and women present with illness and injury, and one might expect that the weight of this suffering would, over time, grind physicians to dust.

But this does not happen, and for the physician, the frequently wrenching demands of clinical practice are redeemed through service. It was the inability to provide that service that left us with only the emptiness of tragedy. So, a lesson: for the physician, the act of service redeems the experience of suffering.

While I was in fellowship training, I would earn extra money to help pay the rent by seeing patients in a walk-in clinic. I saw all sorts of patients, but one in particular stands out. A 42-year-old man presented with stomach upset. He had experienced abdominal pain and loose stools for two days. On exam, he had a low-grade fever, but his pulse and blood pressure were normal, so he was not dehydrated. As I listened to his abdomen, I heard hyperactive bowel sounds, but his abdomen was soft and non-tender, and when I pressed and then withdrew my hand, he didn’t flinch—his abdomen was benign. There was no blood in his stool and all of this was beginning to look like a relatively minor case of gastroenteritis. I could reassure him and send him home, but something didn’t make sense. This was a 42-year-old who surely had had gastroenteritis before in his life, so why did he take a day off from work to come in for an evaluation? Why now? So I asked him, “What is it that you are worried about?” He hesitated, and then blurted out, “CANCER.”

And as we spoke further, I learned that his family history was not as unremarkable as he had initially suggested, and that his father had likely died of stomach cancer when he was this patient’s age. With this shared revelation into the nature and origin of his fear, the patient could suddenly tolerate his minor illness. We see this: what patients need from physicians is very often not a procedure or a medication; in fact, for general medical evaluations, 90% end in reassurance. As physicians, we listen and learn, we reflect and relate, and we get to know our patients, their illnesses, and their fears. So, the spirit of service manifests itself in a most personal and interpersonal collaboration; and through this shared experience, we relieve, or at least diminish, the suffering of our patients.

When I was in high school, I ran on the track team. During my junior year, I seemed to be sick all the time: sore throats, cough, fever. Then strange aches began to appear in my elbows and shoulders. Still I continued to run. At night, I started waking up to find myself drenched. And these night sweats continued for weeks. I continued to run. Then I started getting pounding in my chest, and I felt as if I were about to choke on my heart. Still I kept running. And then the joints that ached began to swell—first my toes, then my ankles, then my knees—a migratory polyarthritis. Finally, not a moment too soon, I stopped running, told my parents, and presented to my general practitioner, who found a heart murmur on physical exam, and marked abnormalities on my electrocardiogram. Needless to say, he could not quite believe my self-neglect.

I had developed a rather florid case of acute rheumatic fever. Not much shorter than I am now, my weight fell to 113 pounds, and although I never doubted that I was going to get through this, my parents were terrified by the prospect that I would not. My GP and my cardiologist were devoted and compassionate, and the story ends well at many levels: the fevers resolve, the arthritis resolves, the pancarditis resolves, I gain 40 pounds, and I go on to run marathons. Also, it was the experience of my physicians’ devoted care that led me to pursue a vocation in medicine. But all no thanks to me—my neglect of my health and minimizing of symptoms bordered on the psychotic. If anyone did not deserve a break, it was I.

Now describing this undeserved happy ending is what your high school English teacher would have called “development by antithesis”—the gentlest way to share the dark truth already known to all: The stories of our patients frequently do not end well, no matter what our patients do, and no matter what we do. In the end, if not now, then later, all pass from this world. All too often the service we provide, this most personal service, will fall short as we come up against the reality of inevitable decline and decay, a reality that makes the most profound demands on the practitioner. So, all too often, the role of the physician is not the procedure or the prescription, and not even reassurance, but consolation and condolence.

The special demands of medical practice on the practitioner were recognized in antiquity. Last week at the New York Metropolitan Museum of Art, Catharine Roehrig, curator of the Egyptian Exhibit, allowed me, in preparation for this address, to examine the Edwin Smith Papyrus, the earliest extant medical treatise. The document dates to the Second Intermediate Period of Ancient Egypt, itself a copy of a document likely dating to 2500-3000 BC—almost 5000 years ago. The papyrus is remarkable for its virtually modern, rational, and scientific approach. It outlines 48 cases and, in each, a condition—generally a case of trauma—is presented. The nature of the trauma—a laceration or broken bone—is laid out. An examination of the injury is described. Diagnosis and prognosis are formulated. The majority of the cases conclude with the instruction to declare, “This is a condition I will treat,” and then a specific treatment is described. A few cases deal with life-threatening conditions with an uncertain outcome and conclude with the instruction to declare, “This is a condition with which I will contend”—perhaps a little less confident, but an imperative to try nonetheless. But most remarkable are 10 cases wherein the physician is directed to withdraw and say, “This is a condition I will not treat.”

In the face of a clearly and unambiguously lethal injury, the physician restrained himself from futile actions—actions that would violate human dignity. This activity—medical practice—was not farming or weaving or pyramid building. Special rules applied. The service that physicians offer, this most personal collaboration, this service so frequently humbled by the prospect of decline and death, is grounded in the service of a human person with special dignity, a dignity that governs the purview of a physician and the scope of a physician’s ethical actions.

2500 years ago, Hippocrates articulated an oath for a profession that was already ancient—as an art thoroughly mature, even if still awaiting the infancy of its science. The Hippocratic Oath is formulated as a divine oath. The first third of the oath is reverently devoted to medical education. Reverence for the practice of medicine reverberates in its amazing declaration to reckon the one who has taught this medical art “equally dear to me as my parents.” The oath then moves to the heart of the matter with a set of restrictions:

I will follow that system of regiment which, according to my ability and judgment, I consider for the benefit of my patients and abstain from whatever is deleterious or mischievous. I will give no deadly medicine to any one if asked, nor suggest any such counsel; in like manner I will not give a woman a pessary to produce abortion. With purity and holiness I will pass my life and practice my art.

The oath concludes with the physician swearing to forego a surgical procedure for which others are better trained, to forego any act of corruption, any act of seduction, or any violation of confidentiality. The obligations specified in this oath follow from a profound respect for the special dignity of the human person.

It is this special respect for human dignity that drives the quest for the professional virtues so important to medicine—compassion, caring, intelligence, diligence—virtues essential for helping patients and families cope with the mysteries and crises of human suffering and death. The vocation of the physician, at its core, is little changed in the millennia since the Oath of Hippocrates was first uttered: to give care to another person to the utmost of one’s abilities, respecting the innate dignity of that person and all the while subordinating one’s personal wants in a gift of self. This gift can be as simple as work performed above and beyond fair compensation, as complex as the creation and use of advanced technology for the good of others, or as great as the hazarding of life itself.

Each morning as I go to my office, I pass the medical student common room, and there on display is a stone tablet bearing the inscription Haec mea ornamenta sunt (“These are my ornaments”—followed by 14 names):

Students of the College of Physicians & Surgeons, Died of Pestilential Disease while Serving in the Public Hospitals. This tablet is erected by the Faculty, that the Memory of these Martyrs of Humanity may not die, and that taught by their Example, the Graduates of the College may never hesitate to Hazard Life in the Performance of Duty.

Fortunately, relatively few physicians are called upon to give their lives, but in an age of HIV, Hepatitis C, and multidrug-resistant tuberculosis, the threats are real, and regardless of your subspecialty, from this day forth you will forever be a most valuable Good Samaritan in moment of need or a first responder in time of crisis.

Walker Percy, the physician-philosopher, tells a telling tale: One morning a man looks at a newspaper, turns to the horoscope page, glances down, and begins to read: “You are the model of decisiveness. You analyze problems crisply. You come to terms with complex situations rapidly. Your gut decisions are unerringly true.” He pulls up from the page and says, “That’s me! That’s definitely me.” Then he pauses and glances back down, only to realize he’s looked at the wrong sign. He now finds his true sign, and he reads, “You are the model of circumspection. You analyze problems with the greatest care. You weigh all the options. You see the risks and the benefits, the rewards and the opportunities. And when you finally decide, your decisions are true.” He pulls up from the page once more, and says, “That’s me! That’s definitely me.” That night, he unpacks a telescope he had purchased the day before. Quickly he assembles it, and points it to the heavens toward a disc that he sees. This disc does not twinkle, and as he focuses on it, he sees four little dots distributed in a line on either side of the disc. He says to himself, “Does not twinkle, must be a planet. A planet with four moons—it must be Jupiter.” And he is right.

Now Percy asks: How can a man recognize a planet 400 million miles away that he has never seen before, and yet not recognize himself? We cannot recognize ourselves. The graduates cannot recognize themselves. We know ourselves only in relation to others. That is why you have family and friends. That is why some of those family and friends are here today—to tell you and to remind you who you are. So our purpose today is not merely to celebrate a completion. It is not merely to inaugurate a beginning. It is to tell you who you are. I recognize you as persons who have pledged to a life of service, a service that redeems the experience of suffering, a most personal service, a most difficult service with special gravity that follows from its intimacy with the human condition. A special gravity flows from the intrinsic dignity of every human life, dignity that calls forth from you the most profound “gift of self.” Our purpose today is to recognize you as you dedicate your life. Today, I recognize you as doctors.


Donald W. Landry, MD, PhD, is the Chair of the Columbia University Department of Medicine. This essay is adapted from the Commencement Address Dr. Landry delivered at the St. Louis University School of Medicine.

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On Friday, June 24, 2011, Planned Parenthood won a first-round victory in an Indiana federal district court, temporarily halting the implementation of the law. Indiana has appealed this decision, but more lawsuits, including one in Kansas, are already appearing. One important argument that Planned Parenthood is making in its defense centers around the claim that Planned Parenthood provides non-abortive healthcare. Thus Planned Parenthood CEO Cecile Richards claimed that Indiana’s law would “take away health care from thousands of women in Indiana.” However, phone calls made by Live Action volunteers to sixteen Planned Parenthood clinics in Indiana revealed that all of the clinics admitted that women on Medicaid could receive healthcare elsewhere.

But why all the fuss from these state legislatures? Planned Parenthood defines itself as a protector of women’s health and “rights.” Furthermore, public perception of Planned Parenthood tends to be favorable; recent polls by CNN show that many Americans do not currently support defunding the organization.

In part, the abortion business of Planned Parenthood—the nation’s largest abortion provider—is what the “fuss” is about. States simply do not want to subsidize the abortion industry with taxpayer dollars. This is certainly true in Indiana, where the funding restriction does not target Planned Parenthood by name, but prohibits the state from contracting with abortion providers.

An in-depth investigation of Planned Parenthood by Americans United for Life, the nation’s first pro-life public-interest law and policy organization (where I serve as Senior Vice President and Senior Counsel), demonstrates that abortion is central to Planned Parenthood’s business. The AUL Report, however, uncovers much, much more than just the importance of abortion to Planned Parenthood operations. It reveals Planned Parenthood practices that are irresponsible, dangerous, and fly in the face of the organization’s claims of dedication to women in need of medical services.

AUL’s Report pulls together in one place, for the first time, a litany of scandals associated with Planned Parenthood, demonstrating the breadth and persistance of the organization’s abuses. The Report shows that the “fuss” about Planned Parenthood is currently, if anything, about far too little. What follows in this article are just a few examples of the many reasons, all documented by the Report, why state—and federal—legislatures are (and all Americans should be) rethinking their dedication to Planned Parenthood.

Planned Parenthood and its affiliates receive over $363 million dollars in government grants and contracts. Medicaid, a program administered by the states and jointly funded by the federal government, contributes a large portion of these funds, and audit reports reveal that Planned Parenthood affiliates have overbilled Medicaid in at least New Jersey, California, New York, and Washington. In California, for example, reports show that one Planned Parenthood affiliate in one fiscal year overbilled the government by over $5 million. In this time of fiscal crisis, Planned Parenthood’s failed stewardship of state and federal taxpayer dollars is appalling.

In addition to defrauding the government and the American taxpayer, it is questionable whether Planned Parenthood abides by state and federal laws restricting abortion funding. Abby Johnson, a former director at a Planned Parenthood clinic in Texas, has stated, “as clinic director, I saw how money received by Planned Parenthood affiliate clinics all went into one pot at the end of the day—it isn’t divvied up and directed to specific services.” If so, this procedure is a violation of federal laws, such as the Hyde Amendment, that specifically prohibit the use of taxpayer dollars for abortion.

More sinister than its misuse of public funding is how little Planned Parenthood cares for the safety of the young women who seek its medical care. The statistics on sexual abuse of girls under the age of eighteen in the United States are staggering. 75 percent of girls under fourteen who have engaged in sexual activity report having had a forced sexual experience; many of the men who engage in these abusive sexual relationships and father children are significantly older.

Even Planned Parenthood acknowledges in its “Fact Sheet” on “Reducing Teenage Pregnancy” that among women younger than 18, the pregnancy rate among those with a partner who is six or more years older is 3.7 times as high as the rate among those whose partner is no more than two years older. To help protect these young girls, all fifty states and the federal government have enacted mandatory reporting laws. These laws require that certain organizations, such as hospitals, report suspected cases of abuse or rape. Thirty-seven states also have parental involvement laws in place that involve the parents in a minor’s decisions regarding abortion.

Given the statistics, most parents—indeed, most people—would expect that an organization like Planned Parenthood, which prides itself on the quality of its care, would be especially protective of young pregnant girls. However, the opposite is the case. In Arizona, Ohio, and Alabama, legal action has been initiated against Planned Parenthood affiliates for failing to report sexual abuse or to obey abortion laws. Instead of providing protection for young victims of abuse, Planned Parenthood’s practices—detailed in the AUL Report—enable the abusers to cover their crimes. For example, in Arizona, Planned Parenthood of Central and Northern Arizona was found liable after it failed to report the sexual abuse of a 13-year-old girl who was raped by her 23-year-old foster brother.

Planned Parenthood even appears willing to protect men who traffic girls as young as fourteen, allowing the continued exploitation of these children for commercial sex. Planned Parenthood clinic workers have been caught telling clients, claiming to be engaged in “sex work,” how to avoid reporting and parental consent laws. It seems that Planned Parenthood is satisfied with providing cheap abortions and contraceptives to young victims of the sex trade and then simply sending these girls back into the arms of their abusers and pimps rather than reporting their terrible situation.

Planned Parenthood also refuses to abide by Food and Drug Administration standards, seeming to put its bottom line above women’s health and safety. For example, Mifeprex/Mifepristone, a drug that has been approved in combination with Misoprostol (the RU-486 regimen) as an abortion-inducing drug, had been authorized by the FDA for use only up to the 49^th day of pregnancy. After 49 days, there is a substantially increased risk of the drug’s failure and complications for a woman’s health and safety. However, Planned Parenthood prescribes the abortion drug through the 63^rd day of pregnancy, two weeks later than approved by the FDA.

What is the consequence of this off-label use? On top of an increase in serious health risks (such as hemorrhaging), RU-486 has a 23 percent failure rate at this stage in pregnancy. By providing women with a drug that fails nearly one in four times, Planned Parenthood can get women to pay for a second abortion. This second abortion must be performed surgically and is therefore more expensive. Planned Parenthood compounds its already hazardous use of RU-486 by distributing the drug through “telemedicine.” Telemedicine entails an “online” visit with a doctor before RU-468 is prescribed, rather than the in-person office visits required by the FDA. This violates FDA protocol and circumvents state laws designed to protect women’s health.

Not only has Planned Parenthood violated existing laws protecting women, it has stood against lawmakers’ attempts to implement new and more effective safety measures. In 2001, the Governor of Texas, Rick Perry, signed legislation that strengthened mandatory reporting laws for sexual abuse of a woman under seventeen and Planned Parenthood vigorously opposed its implementation. In Illinois in 2011, Planned Parenthood lobbied against legislation to broaden a sexual abuse reporting law to require almost all employees and volunteers of organizations that provide or refer for reproductive healthcare or sex education to report child abuse or suspected sexual abuse. They also have opposed laws in Nebraska increasing parental involvement by requiring notification or consent and bills in Illinois offering a pregnant woman who is seeking an abortion the opportunity to get an ultrasound. These are commonsense laws that would make the world a little safer for women. Planned Parenthood’s opposition to what should be “common ground” shows how far the abortion organization is outside the mainstream.

Planned Parenthood claims to be a “trusted health care provider,” but the AUL Report clearly shows that there is little to trust about Planned Parenthood. Even so, the Report only scratches the surface. Congress should use its power to investigate Planned Parenthood futher and determine, once and for all, if it deserves our support, our loyalty, and our money. Until Planned Parenthood answers for its behavior, the surprise is not that the people of Indiana, Kansas, North Carolina, and Texas want to take away their funding, but that Planned Parenthood has not already been stripped of taxpayer dollars throughout the nation. Slowly but surely, Americans will become aware of how little Planned Parenthood deserves our trust, our respect, and our tax dollars. It is time to consider whether you really know about Planned Parenthood.

If you would like to learn more and read the complete report published by AUL, please visit www.aul.org.


William Saunders is the Senior Vice President and Senior Counsel of Americans United for Life.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

His articles reveal how odd it is for one group to fiat the end of debate by declaring a particular set of arguments unworthy of consideration; or, more peculiarly, by declaring that these arguments may not be considered without thereby revealing one’s own status as bigoted, hateful, and offensive.

These absurdities to which Franck points make criticism in contemporary argument a process often uncomfortable and futile. In his masterful That’s Offensive! Criticism, Identity, Respect, Stefan Collini summarizes our resulting hesitation toward argument by explaining how debate is shut down when members of criticized groups believe they are at a historical disadvantage. For many contemporaries, he writes, “an enlightened global politics” requires “treating all other people with equal respect and, second, trying to avoid words or deeds which threaten to compound existing disadvantages.” Given their historically disadvantaged and ostracized position, Collini reports, it is thought that some “social groups … have an equal right to hold or express their convictions without being ‘dissed’ by anyone else.” In other words, to argue against a historically disadvantaged group is apparently to commit an intrinsically hateful, bigoted, and offensive act.

Offense cannot but emphasize “the subjectivity of the person offended.” Yet Collini rightly insists that the mere fact of feeling offended is an insufficient reason to believe that one should take offense; rather, there is “some element of conviction that such a reaction is legitimate or justified.” Since one who takes offense realizes to some degree that he reacts to a case “that others will find appropriate or persuasive … about something generally acknowledged to be significant,” his mere feeling of being offended is not endowed with “unchallengeable authority.” Nevertheless, if the dominant culture is thought to be “constituted by precisely those widespread assumptions and habits” that the offended party finds offensive, appeals to general acknowledgment as the standard of legitimacy hardly settles the problem of subjectivity. Indeed, it is precisely when the majority culture is tone-deaf that an oppressed group’s subjective experience allegedly requires no other justification than its own offense.

Collini argues that the heart of the matter is resentment against those perceived as powerful; even if the criticism against our belief or action has some tinge of truth to it, the feeling of powerlessness is worsened when the criticism is by them (of all people!) against us, and against us now. Here Collini articulates a profound problem: If someone of good fortune or historical privilege criticizes me, and I belong to a subordinate group conscious of its subordination and articulating this feeling to the dominant group, then “their own relative good fortune,” it is felt, “should disqualify them as critics in this case.”

If it were true that someone’s good fortune or historical privilege disqualifies him or her as a critic of lesser privileged groups, then we could understand the claim that even good arguments against same-sex marriage should not be made when members of the subordinate class, namely those desirous of same-sex marriage, “are already vulnerable on other counts.” On this account, good arguments might be persuasive, but persuasion is a “species of power.” Consequently, by refusing to allow the dominant group to argue, the subordinate group sees itself as “standing up for … autonomy,” for its dignity and right to be respected.

Collini’s description of contemporary offense partially explains, it seems, the phenomenon discussed by Franck: even if there are good arguments against same-sex marriage, they are “disqualified” as hateful and bigoted when they are made by a historically dominant group. The better the arguments, the more offensive the position, it is thought, and the more that position must not be considered, but instead be subjected only to scorn by all thinking persons of good will.

This standoff followed by ceasefire presents a dilemma. On the one hand, arguments made against the positions and actions of the disadvantaged require special care and caution so as to avoid that unjust reality where public reason masks a power ploy, even if implicitly and unintentionally so. Fair argument demands, at the least, frank discourse among equal partners, but equality can be made difficult by history; equality can be subverted by frankness when one appeals to general consensus at the expense of the powerless.

On the other hand, Collini is correct that taking offense should “be regarded as initiating a reasoned argument rather than foreclosing on one.” In fact, if offense is a demand for equal respect, then argument should follow on offense, “for how does respect exist except in the company of critical judgment?” To pretend that those who are mistaken are either correct or are “too fragile or too touchy or too stupid to bear reasoned disagreement is to condescend to them … is precisely not to treat them as equal adults.”

Collini’s defense of criticism rejects the primacy of identity politics with its “defining error” of acting “as though one characteristic over-rides all others, thereby homogenizing those who possess it and imposing a binary separation from those who do not.” It is not membership in particular communities based on race, gender, ethnicity, or sexual orientation that matters most, for the “most important identity we can acknowledge in another person is the identity of being an intelligent reflective human being.” All persons are “potentially capable of understanding the grounds for any action or statement that concerns us.” Treating others as “reflective intelligent individuals not wholly reducible to being members of any one community” is not a Western or liberal standard; it is a human one. Any other standard, he claims, treats the other with condescension, as below us. Treating others with respect can require great effort, but exempting others from criticism is not respectful.

There is, Collini argues, a “right to be offended,” and using offense to end criticism “may not only deny the rights of the speaker—it may deny the rights of the listener as well.” Humans reveal their humanity in their ability to offer justification for their actions and beliefs, and to exempt an individual or group from the requirement to justify themselves reveals contempt, even if benignly intended.

Nonetheless, it remains the case, as Franck describes, that some individuals or groups reject arguments against their position merely because those arguments are made now (when we should know better given our knowledge of historical disadvantage) by them (the powerful) against us (the powerless), and indignation and offense are thought legitimate and autonomous responses. How, then, are we to defend criticism when it contributes, or is perceived to contribute, to unfairness?

The key realization is that offense operates within the realm of reason. When I am offended, I have not simply felt resentment, nor merely intuited a wrong; I have performed a cognitive act, namely, judging based on what seem to me to be good and understandable reasons for that act of judging. Whenever we make a judgment of fact (x is) or value (x ought to be), we commit ourselves to the truth and worth of our judgment. To do otherwise disqualifies us from reasonable discussion, as there would be no reason to be taken seriously if we did not claim that our judgment had worth.

Fair criticism aims at truth, at a judgment of what is the case. Offense also demonstrates a commitment to the truth, and thus both criticism and offense share a commitment to truth as an intrinsically valuable aim of human action. Both the critic and the offended party, then, seek truth as a value, and their seeking of truth demonstrates that truth is valuable for everyone like themselves, that is, for all humans. Consequently, both criticism and offense judge truth to be a human good. This judgment also claims that truth is a good for beings like oneself, and so to pursue truth through criticism is to demonstrate that one believes the other is equal to oneself and to wish a good for them—which is a kind of friendship.

Consequently, (1) to take offense is to make a truth claim that one asserts as serious, as does offering criticism; (2) to make a judgment is to claim that truth is good and worth attaining, and it is impossible to seriously deny this without contradiction; (3) to judge that truth is a good is to claim that it is a good for those equal to you; (4) to criticize, and to take offense at that criticism, is to claim that others are your equals and are benefitted by the same goods as you; (5) to criticize is a mark of friendship, which is itself a condition of ethical discourse.

As Franck highlights, we find ourselves in a strange situation when argument is considered unreasonable. I can sympathize with those communities that view themselves as subordinate, and I can understand why they might resent arguments and criticisms made from the majority culture, but to comply with their request for equality in the way they have requested it would be to render them unequal, and that is a wicked thing to do.


R. J. Snell is Associate Professor of Philosophy and Director of the Philosophy Program at Eastern University.

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That is why it was necessary for Congressman Henry J. Hyde (R-IL) to offer, beginning in 1976, his limitation amendment to the annual Health and Human Services appropriations bill, to prohibit the use of funds that flow through that annual appropriations bill from being used for abortions.

Abortion and the Obama Health Care Law

During last year’s healthcare debate, the National Right to Life Committee (NRLC), the nationwide federation of right-to-life organizations, did not take a position on many of the structural issues that dominated much of the debate, such as whether or not there should be a “public option” insurance plan. But NRLC, joined by other mainstream pro-life organizations, strongly advocated that all programs created or modified by the healthcare bill should be governed by explicit, permanent language to apply the principles of the Hyde Amendment to the new programs. The principles of the Hyde Amendment are twofold: no federal funding of abortion and no federal subsidies for health plans that include coverage of abortion, with very limited exceptions.

I wish here to underscore what some people have tried hard to obscure: the language of the Hyde Amendment, as it has long been applied to appropriations within the Health and Human Services appropriations purview, prohibits not only direct federal funding of abortion procedures, but also entails that “none of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion…. The term ‘health benefits coverage’ means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.” [italics added for emphasis]

Phraseology similar to the Hyde Amendment language is found in the abortion-related provisions that govern other federal health insurance programs—for example, the laws that currently govern the State Children’s Health Insurance Program (SCHIP) and the Federal Employees Health Benefits (FEHB) Program.

Whenever a federal program pays for abortion or subsidizes health plans that cover abortion, that constitutes federal funding of abortion—no matter what deceptive labels or gimmicks might be employed to conceal the reality. The claim made by advocates of the “Patient Protection and Affordable Care Act” (PPACA, the enacted “Obamacare” law) and its precursor bills during the 111^th Congress (2009-2010)—the claim that a federal agency can send checks to abortionists to pay for abortions, but without employing public funds—amounts to a political hoax. The federal government collects monies through various mechanisms, but once collected, they become public funds—federal funds. When government agencies use such funds to pay for abortions, that is federal funding of abortion, plain and simple.

Here are just some of the abortion-expanding elements of the enacted PPACA: authorization for abortion coverage under the Pre-Existing Condition Insurance Plan program, federal subsidies for private health plans that cover elective abortions, authorization for abortion funding through Community Health Centers, and authorization for inclusion of abortion coverage in health plans administered by the federal Office of Personnel Management. This is not an exhaustive list.

There is nothing in the PPACA that remotely resembles the Stupak-Pitts Amendment. There are certain apparent abortion limitations, but for the most part they are cosmetic. Instead of bill-wide language that would have permanently applied the Hyde Amendment principles to the new programs, we find a hodgepodge of artful exercises in misdirection, bookkeeping gimmicks, loopholes, ultra-narrow provisions that were designed to be ineffective, and/or provisions that are rigged to expire.

The Truth Comes Out

The first major component of the PPACA to be implemented, the Pre-Existing Condition Insurance Plan (PCIP) program, provided a graphic demonstration of the problem: the Department of Health and Human Services approved plans from multiple states that would have covered elective abortions. NRLC documented this and blew the whistle in July, 2010, which produced a public outcry, after which DHHS announced a discretionary decision that the PCIP plans would not cover elective abortions. Commentators on all sides of the issue were in agreement about one thing: coverage of elective abortions within this new, 100% federally funded program was not impeded by any provision of the PPACA. The program was not even in President Obama’s Executive Order 13535, which purported to restrict federal funding of abortion but which was in reality a political document nearly devoid of substantive content (and accurately dismissed by the president of Planned Parenthood as “a symbolic gesture”).

On the same day that DHHS issued its decision to exclude abortion from the new PCIP program—July 29, 2010—the head of the White House Office of Health Reform, Nancy‑Ann DeParle, issued a statement on the White House blog explaining that the discretionary decision to exclude abortion from the PCIP “is not a precedent for other programs or policies [under the PPACA] given the unique, temporary nature of the program.” Laura Murphy, director of the Washington Legislative Office of the American Civil Liberties Union, said, “The White House has decided to voluntarily impose the ban for all women in the newly-created high risk insurance pools…. What is disappointing is that there is nothing in the law that requires the Obama Administration to impose this broad and highly restrictive abortion ban.”

According to a Quinnipiac University poll from January 2010, 67% of Americans are opposed to allowing public funds to pay for abortion through health care. This included 68% of women (and 65% of men), and 47% of Democrats. A 2010 Zogby/O’Leary poll found that 76% of Americans said that federal funds should never pay for abortion or should pay only to save the life of the mother. A September 2009 International Communications Research poll asked, “If the choice were up to you, would you want your own insurance policy to include abortion,” to which 68% of respondents answered “no” and only 24% answered “yes.”

The Real Path to Abortion Reduction

During his quest for the Democratic presidential nomination, then-Senator Obama and his campaign went to great lengths to emphasize his unblemished record of opposition to limitations on abortion, including opposition to parental notification laws and bans on partial-birth abortion, as well as his support for repeal of the Hyde Amendment. He even advocated elimination of the very modest federal support available for crisis pregnancy centers. After securing the nomination, however, he adopted a rhetorical line of advocating government policies to reduce the number of abortions. For example, at the August 17, 2008 Saddleback Forum, Senator Obama said, “So, for me, the goal right now should be—and this is where I think we can find common ground… how do we reduce the number of abortions?”

So let us talk about “abortion reduction.” There is abundant empirical evidence that where government funding for abortion is not available under Medicaid or the state equivalent program, at least one-fourth of the Medicaid-eligible women carry their babies to term, who would otherwise procure federally funded abortions. Some pro-abortion advocacy groups have claimed that the abortion-reduction effect is substantially greater—one-in-three, or even 50 percent. For example, a 2010 NARAL factsheet contains this statement:

A study by the Guttmacher Institute shows that Medicaid‑eligible women in states that exclude abortion coverage have abortion rates of about half of those of women in states that fund abortion care. This suggests that the Hyde amendment forces about half the women who would otherwise choose abortion to carry unintended pregnancies to term and bear children against their wishes.

But even if we stick with a conservative 25 percent abortion-reduction figure, it means that well over one million Americans are walking around alive today because of the Hyde Amendment. The Hyde Amendment is the greatest domestic “abortion reduction” program ever enacted by Congress.

Many critics of the Hyde Amendment argue, quite explicitly, that these children should not have been born. Indeed, over the years, some critics of the Hyde Amendment policy have quite explicitly argued for federal funding of abortion as a cost-saving expedient. Whatever their motivations, if these groups and their congressional allies had succeeded in their efforts to block the Hyde Amendment, these million-plus children would not have been born. Their birth was, according to a 2007 Guttmacher Institute monograph, a “tragic result” of the Hyde Amendment:

Perhaps the most tragic result of the funding restrictions, however, is that a significant number of women who would have had an abortion had it been paid for by Medicaid instead end up continuing their pregnancy.

Two bills currently under consideration in Congress address the issue of federal funding of abortion: the Protect Life Act (H.R. 358) and the No Taxpayer Funding for Abortion Act (H.R. 3). The Protect Life Act would repeal and repair the abortion-expanding components of the Obamacare law. The No Taxpayer Funding for Abortion Act would enact a permanent, government-wide prohibition on funding of abortion and health plans that cover abortion, in all federal programs. The Protect Life Act would also enhance the legal protections for health care providers who do not wish to participate in providing abortions.

Anyone who thinks that the million-plus Americans that walk among us today because of the Hyde Amendment constitute a “tragic result,” should oppose these two bills. Those who think otherwise should support them. If these bills are enacted, the lifesaving effects already achieved through the Hyde Amendment will be multiplied—and that is a goal that our organization regards as the furthest thing from a tragedy.

Douglas Johnson is the Federal Legislative Director of the National Right to Life Committee. This article is adapted from testimony presented by Mr. Johnson at a hearing on the Protect Life Act conducted by the Health Subcommittee of the Committee on Energy and Commerce, U.S. House of Representatives, on February 9, 2011. Mr. Johnson’s full written testimony, which includes 30 end notes quoting and linking primary documents, is posted here. A 24-page sworn affidavit submitted by Mr. Johnson to the subcommittee, detailing the abortion-expanding components of the “Patient Protection and Affordable Care Act,” is posted here.

Copyright 2011 the Witherspoon Institute. All rights reserved.

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The danger that Obamacare poses to the pro-life movement is twofold. First, if abortion is listed as a federal health benefit, that could easily nullify or weaken a number of important state level pro-life laws including parental involvement laws, waiting periods, and informed consent laws. Second, Obamacare provides federal funds to insurance plans which cover abortion. This should concern pro-lifers for several reasons. There is plenty of evidence that government subsidies for abortion increase abortion rates. Additionally, one reason why the abortion rate in the United States has fallen is the substantial decline in the number of abortion providers. In fact, the number of abortion providers has declined by nearly a third since 1982. A steady flow of federal funds to abortion providers could stem or even reverse this trend.

As such, the repeal of Obamacare has to be the top priority for the pro-life movement. And the news is not all bad.   Even though supporters of health care reform succeeded in enacting Obamacare this past spring, it is fair to say that the pro-life movement offered the most effective opposition.  As such, the pro-life movement is in a unique position to offer effective support for its repeal. Indeed, the least popular aspect of Obamacare was the federal subsidies for insurance plans which covered abortion. Many Americans — even many who do not consider themselves pro-life — are opposed to any government funding for abortion. As such, the pro-life movement needs to keep abortion funding at the forefront during the upcoming debates over the repeal of Obamacare.

Indeed, during the deliberations over health care reform the Obama administration and its allies were well aware of the potency of the pro-life movement. They quickly realized their pro-choice political allies would never support an explicit ban on federal funds to insurance plans which included abortion. As such, they launched a concerted campaign to convince the general public that Obamacare would not increase the abortion rate in America. Among the claims that they made were that 1) increasing funding for contraception would lower the abortion rate 2) the experience of Commonwealth Care in Massachusetts provided evidence that the abortion coverage would not increase abortion rates and 3) some countries with more extensive public health benefits had lower abortion rates than the United States.

Now these claims were all, to put it mildly, weak empirically.  A 2002 Guttmacher Institute study found that a very small percentage of sexually active women forgo contraception due to either cost or lack of availability.  Regarding public health care benefits and abortion rates, there is virtually no peer reviewed evidence indicating that more generous public benefits of any kind reduces the incidence of abortion. The specific example of Commonwealth Care in Massachusetts was unpersuasive since a high percentage of Massachusetts residents already possessed health insurance prior to the enactment of Commonwealth Care. Finally, while it is true that some European countries with single payer health care have lower abortion rates than the United States, it should be noted that our abortion rates are falling while theirs are increasing.

The pro-life movement, and most Americans in general, did not find these arguments put forth by supporters of Obamacare compelling. As such, as President Obama struggled to find the votes in the House of Representatives necessary to pass Obamacare, he shifted strategies. President Obama pledged to sign an executive order that would purportedly ban federal funds from going to insurance policies that would fund abortion. Obamacare supporters hoped that this would purchase some political cover for pro-life Democrats and convince some Americans that Obamacare did not actually fund abortion.

Of course, nearly all analysts, both pro-life and pro-choice agree that the executive order is close to meaningless.  Cecile Richards of Planned Parenthood called it a “symbolic gesture.” Additionally, after the executive order was announced, NARAL, NOW, and other groups that support legal abortion did not call for the defeat of Obamacare. Furthermore, in the months after the passage of Obamacare, the National Right to Life Committee found that the Department of Health and Human Services agreed to fund high risk insurance plans in Pennsylvania, Maryland, and New Mexico all of which included abortion coverage. The outcry did prompt a policy change from the Obama administration. But the policy change was due to the outside scrutiny, not the legal weight of the executive order. Furthermore, the Obama administration vowed that this policy change “is not a precedent.”

As the debate over the repeal of Obamacare takes place this year, the Obama administration and its allies are sure to recycle last year’s arguments again. They will make a concerted effort to legitimize the executive order.  Additionally, they will spin Obamacare as something that pro-lifers should support, or at least not oppose. However, the pro-life movement needs stay on message and publicize the fact that Obamacare will result in federal funding for abortion.

Moving forward, the pro-life movement has some legislative options. On Thursday, two pieces of pro-life legislation were introduced in Congress, H.R. 3 “The No Taxpayer Funding for Abortion Act.” and H.R. 358 “The Protect Life Act.”  H.R. 3 was introduced by Congressman Chris Smith (R-NJ). This bill would create universal, permanent ban on federal taxpayer funding of abortion. Furthermore, unlike the Hyde Amendment it would not have to be annually renewed.  “The Protect Life Act,” introduced by Congressman Pitts (R-PA) would rewrite multiple provisions of Obamacare in order to prohibit federal subsidies for abortion.  Enacting either of these pieces of legislation would be an important first step.

However, the pro-life movement cannot stop there. Ultimately, greater federal control over health policy may succeed in removing abortion from public debate. This is a goal that supporters of legal abortion are likely to pursue.  After all, abortion rights advocates typically try to achieve their policy objectives via administrative or judicial fiat — instead of the democratic process.  As such, as pro-lifers return from the March for Life we should rightly celebrate the important incremental progress that we have made. More importantly, however, pro-lifers also need to realize that future progress may well hinge on our ability to repeal Obamacare.


Michael New is an Assistant Professor at The University of Alabama and a Fellow at the Witherspoon Institute in Princeton, NJ.

Copyright 2011 the Witherspoon Institute. All rights reserved.

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In the end, those efforts came up short because the pro-lifers’ supposed congressional allies on the Democratic side abandoned them when it mattered most. The result is that the new law does provide taxpayer funding of elective abortions, for the first time in many years.

But passage of the new law did not end the debate, on abortion coverage or health care more generally. As was evident in the 2010 midterm election, a plurality of Americans remains strongly opposed to the bill that passed. Scores of the new law’s most ardent supporters were swept out of office by the voters. Now, a strong movement is building to repeal what was passed and replace it with a reform program more consistent with American values. The push for “repeal and replace” will almost certainly be among the most prominent themes of the new Republican House come January.

However, Richard Stith, a pro-life law professor at Valparaiso University, is urging his fellow pro-lifers to stay off the “repeal and replace” bandwagon. In an article for First Things online, he has suggested that a more promising approach for pro-lifers is amending the new law with clear pro-life language.

His logic goes something like this. In the healthcare marketplace of today (before the new law’s provisions take effect), private insurance, including plans organized by employers, more often than not covers elective abortions. Under the new law, the government will start running a larger share of the insurance marketplace in 2014, and subsidize it explicitly with tax dollars. That means more Americans who are now in today’s private insurance market will get their coverage in the future through a system organized by the government. Because taxpayer money will be involved, pro-lifers sought to extend the prohibition against funding of elective abortions—a prohibition that now applies to other tax-financed health care like Medicaid—to the new government-managed marketplace too. Had they not been defeated in that effort, they would have successfully removed elective abortions from insurance coverage for millions of people who are in plans that pay for such abortions today. So, Stith argues, the solution here is not to revert to the anti-life status quo of today’s private insurance market, but to extend the pro-life protections which apply to taxpayer-funded health care to the entire government-managed marketplace that will emerge in 2014.

Stith has a point. It’s true that many Americans are unknowingly subsidizing elective abortions through their private health insurance premiums today. They often have no choice in the matter, as their employers are making the decisions about what’s covered and what’s not in employment-based plans. Stith’s perspective is certainly a legitimate position for a pro-lifer to take, given where things stand.

But is it the only legitimate position for pro-lifers? The answer is most definitely “no.”

The issue of how a healthcare system addresses abortion provision is of course of paramount concern. Indeed, it is a necessary condition of an acceptable program that it not force Americans to subsidize the elective abortions of others. That is a non-negotiable first principle that pro-lifers have rightly made their top priority.

But for many Americans, including many pro-lifers, that is a necessary but not sufficient criterion for determining the acceptability of a reform program. There’s much, much more to consider. For many pro-lifers, even if the new healthcare law were amended to include the Hyde Amendment (against funding abortion) and Weldon Amendment (conscience protections), the amended law would still be so flawed, because of what it would do to the American economy as well as American health care, that the only remedy is its full repeal and replacement with economically sound reform that is also pro-life. Of course, pro-lifers are under no obligation to share this point of view. It is not a precondition for pro-life sentiments. But neither are pro-lifers under any obligation to accept at face value the supposed benefits of the new law when reason tells them otherwise.

The basic premise of the new healthcare law is that the federal government has the capacity to allocate resources in the health sector to promote equity and efficiency. There is abundant evidence that demonstrates this to be a very dubious assumption. Instead of promoting quality and efficient health care, the government pursues budget cutting with arbitrary, across-the-board payment-rate reductions for those providing medical services. There’s no effort to distinguish based on how well or badly they treat their patients. Everyone gets cut at the same rate, and the predictable result is that willing suppliers of services leave the marketplace. The only way to then reconcile supply and demand is with queues and waiting lists, which are commonplace in Canada and the United Kingdom. Putting the government in the cost-control driver’s seat is a recipe for a long-term decline in the quality of American medicine.

Further, the new law is based on deceptive budgetary and economic assumptions that mask the true costs of what was passed. The official cost projections are alarming enough—$1 trillion in spending over the next decade, financed by $500 billion in Medicare cuts (mainly in the form of lower payments for services) and another $700 billion in tax hikes. But the reality will be far worse than that. The centerpiece of the new law is a very generous new subsidy program for health insurance, available to families with incomes between 133 and 400 percent of the federal poverty line. Census data shows there are 111 million people in that income range, but official estimates assume only 20 million or so will get the new subsidies. The assumption is that many millions of otherwise qualified people will stay in job-based coverage, and thus lose out on thousands of dollars in federal support. That’s never happened before with an entitlement program, and not likely to happen this time. One way or another, the vast majority of those eligible for financial support will end up getting it, and the cost of the new law will soar, by another $1 trillion over ten years according to one estimate.

There are many other important reasons to have deep reservations about the new law. It will discourage hiring by employers, especially among low-wage workers, because employers will get penalized with fines if those workers end up in government-subsidized insurance. It creates new penalties for marriage, by handing out more subsidies to unmarried couples than to married ones with similar incomes. And it hands over to the government vast new power to insert itself into medical decisions.

Proponents of the new law will argue that its main achievement is covering about 30 million people with insurance who do not have it today. The truth is that many of those people who would gain coverage would do so only because they were forced to sign up or else pay a new fine to the federal government. Many of them are younger and far healthier than the average American, which is why they hadn’t signed up previously. The number of very sick Americans who would gain new coverage under the proposal is far, far less than 30 million.

There are much better ways to address the genuine needs of the uninsured than what was passed. The fundamental problem in American health care is insufficient productivity by the health sector. The solution is not top-down micromanagement from Washington, D.C., but a functioning marketplace in which the government provides oversight but consumers and patients direct the allocation of resources. That can be done by converting today’s federal support for insurance into support that the beneficiaries themselves direct and control. Indeed, a crucial reform would be to give all American households a fixed tax credit—about $6,000 per family—that must be used for the purchase of an insurance plan. This would take the place of today’s tax preference for job-based plans and would guarantee insurance coverage to the entire U.S. population. It would do so in a way that then engendered the kind of dynamic response in the marketplace that could transform American medicine for the better. And it could be an absolutely pro-life step by inclusion of a clear prohibition against coverage of elective abortions in any plan purchased by the credit.

No one suggests that all pro-lifers must adhere to this kind of thinking and support “repeal and replace.” But, at the same time, it should not be expected that all pro-lifers will be satisfied with adding a Hyde-like amendment to what has already been passed. Pro-lifers in Congress would certainly support that step. But there’s a genuine debate still underway in this country about the best way to fix American health care, and many pro-lifers believe firmly that a sensible “repeal and replace” program is the most prudent and principled course.


James C. Capretta is a fellow at the Ethics and Public Policy Center.

Copyright 2010 the Witherspoon Institute. All rights reserved.

We take a simpler view. Our analysis of the bill has been concerned with protecting the unborn and guarding the consciences of those who bravely refuse to participate in their destruction. We have been guided by the conviction that it is our duty as citizens not only to extend healthcare but also to expand the circle of human care. Commonweal is free to flog whatever interests and flay whatever enemies it wishes, but those are distractions from the pressing task at hand.

The editors of Commonweal seem to have a bad case of miter envy. They think that we here at Public Discourse imagine ourselves wearing one, because we dared to publish a defense of the U.S. Conference of Catholic Bishops’ legal analysis of the Obama administration’s healthcare law, the Patient Protection and Affordable Care Act (PPACA). They charge that Public Discourse and Professor Helen Alvaré, author of “A Health Care Challenge to Commonweal and Timothy Jost,” have tried to turn a dispute over abortion funding in the health care law “into an ecclesial turf war.” With genuine or feigned high dudgeon, Commonweal instructs us that “it is possible for Mennonites—or Mormons or Zoroastrians—to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.”

We readily admit as much. But who suggested otherwise? We agree with the bishops on this issue because they are right, not because they are bishops. Professor Alvaré does likewise. And she criticized Timothy Jost, Commonweal’s favorite health care expert, not because he isn’t a Catholic but because his legal arguments are lacking. Surely at Commonweal they have noticed that this conclusion might be applied to persons who call themselves Catholics—not just to those who call themselves Mennonites or Mormons or Zoroastrians.

In her initial piece for Public Discourse and a follow-up published today, Professor Helen Alvaré, chair of the Witherspoon Institute Task Force on Conscience Protection, has done a brilliant job of ignoring distractions and simply pointing to the actual words of the bill. Alvaré agrees with our analysis that unless the bill is revised or repealed, Americans face the risk of new, unprecedented, and direct taxpayer funding for abortions. We urge everyone to read these articles.

It has become standard practice for politicians and public figures of all stripes to present themselves as “pro-life” even when they oppose the basic goals of the pro-life movement. Despite this devaluing of the word, we are still inclined to take people at their word when they identify with the unborn. But we are troubled at the fact that when you actually look at the words of Jost, they are at best ambivalent, and at worst actually opposed to the cause of life.

Our concerns center on Jost’s public stance against the pro-life Stupak Amendment. Of course, there are many conceivable reasons why a pro-lifer might have opposed the Stupak Amendment, but Jost’s reasons were neither tactical nor prudential. Instead, they appear to be principled. For Jost’s opposition to the amendment was based on the premise that abortion—far from being the taking of innocent life—is a legitimate form of health care:

The intent of health care reform, as President Obama said from the outset, was to extend health insurance to Americans who do not now have it while not taking away coverage that Americans now enjoy. Reportedly, half or more of health insurance policies in the United States now cover abortion. To the extent that any Americans insured through such policies will receive affordability credits under the new legislation to purchase their health insurance, they will have less coverage after the bill goes into effect than they did before.

Jost decries the fact that citizens will lose their abortion coverage, but the pro-life movement’s stance all along has been precisely that the intent to harm has nothing to do with the call to heal. No pro-lifer could agree with Jost’s claim that a health plan that dropped their coverage for abortion would offer “less coverage after the bill goes into the effect than they did before.” Abortion is not health care.

In the same piece, in a surprising category error for a law professor, Jost worries about Catholic participation in the health care debate, and urges “Let us not become another Iran.” He remarks that the “separation of church and state” is somehow threatened if the Catholic bishops succeed in persuading the Congress of a point in moral reasoning that has no recourse to revealed truths of the Catholic faith. We know that one or two major figures in the law have been careless enough to make this kind of argument—Justice John Paul Stevens comes to mind—but it does not recommend Jost to us as a legal thinker. By this line of thinking, no legislation grounded in any moral judgment could survive constitutional scrutiny if it happened to coincide with the moral tenets of any identifiable religious sect. That is not remotely plausible as a reading of the First Amendment, and it is not what one would normally expect from a legal scholar who bills himself as a pro-life Christian.

What remains most confusing about Jost’s case is the fact that he previously expressed rank hostility for the Stupak Amendment but now claims (approvingly) that the new law prevents everything the Stupak Amendment was intended to prevent. If that is indeed the case, his strong opposition to Stupak and love of the current bill today seems baffling.

Jost professes to be shocked that Alvaré has, in his words, “essentially written a brief that could be used by an abortionist claiming that community health centers must cover abortions.” This, he intones gravely, “is a very strange argument for a pro-life advocate to be making.” But if Alvaré is right about the law, as we believe she is, then there’s nothing the least bit strange about it. Abortionists hardly need assistance in making this case, while allies of President Obama with dubious claims to pro-life credentials can be expected to say—as Commonweal and Jost have consistently done—“nothing to see here, move along, folks.”

Jost’s revealing slips and naked partisanship come as little surprise at this point in the debate. Pro-life groups have tried in vain to correct the errors promoted by Jost and Commonweal. Nonetheless, Jost continues to cite irrelevant statutes and ignore the relevant precedents on the issue of the funding of Community Health Centers. He has also refused to acknowledge the threats the bill poses to conscience protection. Commonweal, for its part, has been a broken record playing a bad song. They have constantly reiterated the claim that “new funding [under PPACA] was already implicitly covered by the [Hyde] amendment.” But, as we have stated before, there’s no reason to think this. In previous cases the court has mandated that agencies spend money on abortion when there is not statutory language stating otherwise.

We’re hardly happy with our assessment of the new health care law’s treatment of abortion. It would indeed be nice if the claims advanced by Commonweal and Jost were true and the position held by Alvaré and every major pro-life group was false. But the law speaks for itself. There is nothing we can do except change it. One way to do so would be through the Protect Life Act, which was recently introduced into Congress. Here, surely, is a place where the pro-life movement can stand together. If Commonweal and Jost take protecting life as seriously as they took the imperative to pass the health care bill, they will stop sniping from the sideline and join us in the effort to restore the protections they helped destroy.


Copyright 2010 the Witherspoon Institute. All Rights Reserved.

In his response to my piece on abortion and health care, Jost claims that pro-lifers have failed to cite relevant judicial decisions. This is a canard. Pro-lifers have cited the pertinent cases chapter and verse—especially in a legal analysis written by the United States Conference of Catholic Bishops. It is hard not to think that Jost is being disingenuous when he demands “[the name of a] single [judicial] opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage.”

As Jost surely knows, the category he describes is a null set. Such opinions could not previously exist. Before the Hyde Amendment, there were no such federal administrative regulations or executive orders because there was no statutory abortion-funding restriction on which to base such a regulation or order.  After the Hyde Amendment, there were no federal health care mandates that could include elective abortion for the simple reason that Hyde already applied to all of them.

Jost admits that “the Hyde amendment . . . does not specifically cover the funds appropriated for community health centers [CHCs] under §10503 of the Affordable Care Act.” He nevertheless holds that Hyde will restrict the funds in the newly created CHC fund because these will be “mixed together with funds covered by the Hyde Amendment.” But he continues to provide no legal support for this argument—no case law, no relevant statutory text.

Jost seeks to bolster his claims by appealing to the authority of law professor Thomas Berg. In a recent essay for Democrats for Life, Berg looked at the language of §10503 (“The Secretary of Health and Human Services shall transfer amounts in the CHC Fund to accounts within the Department of Health and Human Services”), and concluded that such funds will become subject to Hyde restrictions by becoming part of “existing accounts” already covered by Hyde. Unfortunately, the word ‘existing” nowhere occurs in the passage he cites. While Berg made a more complete attempt to address the relevant questions, his conclusion also flies in the face of the plain language of the Hyde amendment, which states that it applies only to funds “appropriated in” the Labor/HHS appropriations law, or to “funds in any trust fund to which funds are appropriated in this Act.” The new CHC fund is not appropriated by the Labor/HHS law, but by a new law—PPACA. PPACA furthermore does not appropriate funds into any “trust fund” receiving Labor/HHS appropriations, but rather into a new—and separate—CHC fund.   Neither Professor Berg nor Professor Jost can get around this plain language.

In yet another red herring, Jost invokes the Chevron principle of administrative law, which holds that courts will defer to the reasonable interpretation of a law by a federal administrative agency unless the law is unambiguous. Yet his legal argument has two fatal problems.

First, the CHC law unambiguously requires that CHCs fund “health services related to family medicine, internal medicine . . . obstetrics, or gynecology that are furnished by physicians,” and “family planning services” (42 U.S.C. § 254b). Past court cases cited by the USCCB have interpreted similar categories in Medicaid law to require the funding of abortion. Neither the statute governing CHCs, nor PPACA’s text appropriating new money to CHCs contains a Hyde-type amendment limiting funding for abortions. In light of the unambiguous wording of the law, therefore, a federal administrative agency interpreting either law contrary to the statutory language would not win Chevron deference. Neither the Secretary of Health and Human Services (HHS) nor the President can overcome legal barriers created by the clear language of a statute. Good will is no remedy for bad law.

Second, the regulation that does presently restrict abortion funding at CHCs—the regulation that Jost continually relies upon as HHS’ “reasonable interpretation of a law”— is not a regulation interpreting the PPACA or the law governing CHCs. It is a regulation interpreting the annual Hyde amendment, a law which, by Jost’s own admission, “does not specifically cover” the PPACA’s appropriations to CHCs.

For both reasons, a Chevron argument cannot accomplish the task Jost assigns it. It cannot assuage the well founded fears of pro-lifers that new appropriations for Community Health Centers—which, by their statutory terms, must provide categories of services that are consistently interpreted to include abortion—are statutorily available for elective abortions.

Earlier this month, defenders of the new health care law crowed when HHS told Pennsylvania, New Mexico, and Maryland that high-risk insurance pools could not be used to pay for elective abortions. But this series of events only confirmed the USCCB’s legal analysis. It was precisely because the high-risk insurance pools were not governed by Hyde language that states assumed that their federal grants could cover elective abortions. This is exactly the conclusion that pro-life groups predicted states would reach when confronted with broadly worded federal health care mandates without Hyde restrictions.   It is also the conclusion reached by the Congressional Research Service in a June 23, 2010 memo to the Senate Committee on Health, Education, Labor and Pensions.  They found that neither the PPACA, nor the Hyde Amendment, nor the President’s executive order, nor any other law, forbade high-risk insurance pool funds from funding elective abortions.

Pro-choice politicians and abortion providers have reached the same conclusion. The president of the nation’s largest abortion provider, Planned Parenthood,  said last week: “This decision [by HHS to restrict abortion funding] has no basis in the law and flies in the face of the intent of the high-risk pools . . .” Planned Parenthood sent an email to its supporters about the HHS directive stating that “No law passed by Congress forced this decision.” Congresswoman Louise Slaughter sent a letter to HHS on behalf of the Pro-Choice Caucus decrying the federal government’s “narrow[ing]” of the scope of “legal reproductive health care services” available to women. In short, when the plain language of a law mandates coverage of broad categories of medical needs, extant law makes clear that abortion is almost certainly included unless it is specifically excluded.

The fatal blow to Jost’s argument comes from the fact that HHS was able to restrain federal funding for abortion in this specific case only because §1101 contained explicit language allowing it do so (or indeed to set any other requirement it wishes). Crucially, this language does not have broad application across PPACA and is not contained in PPACA’s language about Community Health Centers. Section 1101, as Jost correctly notes, allows the Secretary of HHS to require high-risk pool grants to meet “any other requirements determined appropriate by the Secretary.” Due to this language, there is an argument that the federal regulators are empowered to direct states to exclude elective abortions from these plans for high-risk enrollees—although it is worth noting that the Secretary did so only after a public outcry by pro-life groups.

The Secretary’s response is welcome, and one hopes it will hold up if challenged in court. However, it needs to be stressed that Jost does not grapple with the distinction between the explicit grant of administrative power to the Secretary in §1101 and the absence of similar power in the PPACA’s sections dealing with CHCs. It is also worth noting that the USCCB did not point to the high-risk insurance pools section of PPACA pre-passage, as a prime example of the law’s potential for unfettered abortion funding. CHCs, with their statutory mandates for “family planning” and “gynecology” services are not subject to Secretarial “requirements determined appropriate,” but high-risk insurance pools are. The plain language of PPACA thus supports the power of the President via his executive order to instruct the Secretary to limit abortion funding in high-risk pools (or of the Secretary to limit  such funding of her own authority). There is no similar statutory language to support presidential authority in the case of CHCs (or for that matter, more broadly across PPACA).

Jost must ultimately confront the fact that under PPACA, there is a new status quo respecting direct federal subsidizing of insurance plans that cover abortion. There are already federal tax breaks for insurance plans containing abortion, but PPACA takes us further down the road of federal support for and involvement with elective abortions. Why shouldn’t pro-life people protest when there is a move from the status quo on this matter to something worse?

There is also, sadly, a new status quo on conscience protection. The Senate had the opportunity to apply longstanding conscience protections of the Weldon Amendment to PPACA, but refused to do so. The President’s executive order indicates that he was willing to apply Weldon to the PPACA, but separation of powers means that the President cannot unilaterally insert it into the PPACA in the face of the Senate’s rejection. About this problem, Jost replies only that “many provisions of the Act were not well drafted.” Now that PPACA is passed, then, one would expect Jost and Commonweal to be on the front lines of the effort to get this and other problems resolved fully via the recently introduced Protect Life Act (H.R. 5111). Yet their full-throated support is not yet evident.

Jost finally faults me and the USCCB for writing a “brief that could be used by an abortionist claiming that community health centers must cover abortions.” Yet any person experienced with legislation affecting abortion or conscience protection knows that that is exactly what the wise pro-life lawyer or lobbyist must do while a law is being drafted. Abortion supporters most certainly had a hand in crafting the PPACA. I often dealt with some of the best pro-abortion attorneys during my years working directly in the pro-life movement, and I know from experience that they are adept at the practice of using legislative language in order to forward the practice and funding of abortion. Indeed, they have already started to coach Community Health Centers on ways to provide elective abortions No one should fool himself into thinking that I am making arguments that are not already known to our opponents in this debate.

Pursuing these questions is, far from being cynical, a necessary part of a robust search for truth. Furthermore, Jost and Commonweal have turned a blind eye to facts known by every experienced legal and policy analyst in the pro-life movement—e.g. the pro-choice commitments of so many of the political actors managing the health care bill, and the significance of the Senate’s refusal to adopt Hyde or Weldon language across the PPACA.

All that pro-life groups said—and all that I affirm after looking at the legal back-and-forth—is that between the plain language of the new health care law, its accompanying executive order, the legal precedents relevant to each, Congress’ rejection of proposed fixes, and the political processes leading to the enactment of the PPACA, pro-life citizens and legal experts were right to express grave concern over the final passage of this bill. They had more than reasonable cause to believe that it would move the United States toward a greater acceptance of abortion and the violation of moral conscience.


Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Conversely, Commonweal has extended every benefit of the doubt to the opinions of one professor, Timothy Jost, who not only has no record of cooperation with Catholic moral and policy interests along the consistent ethic of life, but seems to regard Catholic contributions to moral reasoning about law with animosity, comparing Catholic influence to the establishment of an Iranian theocracy. Furthermore, Jost seems to be a strident partisan across the board, a condition best (and hilariously) exemplified in his May 17 editorial for Politico, wherein Jost wrote how “unimaginable” it would be for American voters to want Republicans back in government when, under the Democrats, the “economy has come roaring back.”

Meanwhile, The USCCB’s uniquely nonpartisan voice—even in the midst of some of the nastiest inter-party exchanges in recent history—successfully held together advocacy against killing the unborn with advocacy for expanding health care insurance to all Americans. Yet Commonweal, it seems, would not be satisfied with anything less than a full-throated blessing of whatever the House majority decided to offer pro-life Americans while in the throes of desperate, last-minute negotiations.

Commonweal’s reliance on Jost became more and more troubling as Jost persistently failed to address the arguments contained within the USCCB’s legal analysis and Commonweal failed to hold Jost to account. Instead, Commonweal and Jost have continued to suggest that the USCCB reacted to the PPACA in an alarmist fashion. Yet the law does identifiably weaken protections against federal involvement in abortion, and weaken federal protection for freedom of conscience. Given both the continuing high number of abortions in the U.S. today, and the way in which rights of conscience are increasingly characterized as the enemy of women’s rights (most notably in a 2008 letter from then-Senator Obama to the Secretary of Health and Human Services), why shouldn’t the USCCB protest against problematic portions of the PPACA?

This law will affect every American, every health plan and every health care entity from sea to sea. It will, as Commonweal surely knows, reframe the health care landscape for generations to come. With regard to the importance of the specific dispute about whether abortions might be funded in Community Health Centers (CHCs), for example, a recent article on CHCs in the New England Journal of Medicine reports that 5% of Americans currently rely on CHCs for their health care, a figure that could balloon to 40 million people under the new law. Abortion-rights groups are also aggressively promoting a combination of accounting gimmicks and community activism in order to get CHCs to offer elective abortions. The USCCB’s lawyers and policy analysts are responding proportionally to the size of the threats to conscience and to respect for vulnerable human life.

We must keep in mind that the Senate refused to incorporate existing law—namely the Hyde amendment’s protections against abortion funding and the Weldon amendment’s protections of conscience—into the PPACA. On Dec. 8, 2009, an amendment that would enforce Hyde limits on the PPACA was tabled (in a 45-to-54 vote), and the Senate adopted the “Nelson-Boxer language” instead. Regarding Weldon conscience protection language, Senator Reid decided not to include it in the bill he drafted behind closed doors in late November and December. Rather, different language about abortion funding and conscience was adopted, language accepted by Senators and interest groups robustly supportive of legal abortion. This is not meaningless. Rather, a logical observer would conclude that this series of events renders it highly unlikely that the final language of the PPACA—as Jost and Commonweal claim—does in fact does include protections either similar to or as strong as Hyde- and Weldon- type protections.

Indeed, the naïve hopes of Commonweal and Professor Jost were almost immediately disappointed. During the week of July 12, the state insurance commissioner for Pennsylvania announced that the federal government will be providing 160 million taxpayer dollars to help pay for medical services in the new high-risk insurance program established by §1101 of the PPACA—including virtually unlimited abortion services. The Department of Health and Human Services has already issued a statement denying this, but they have offered no documentation as to why Pennsylvania’s published proposal does not mean what it says. The only sure solution for this morass, and for similar problems likely to arise in the other 49 states, is to amend PPACA with a clear statutory ban incorporating the Hyde amendment policy. Neither Commonweal nor Jost has explained why they don’t simply endorse this clear solution instead of straining to argue—with growing implausibility—that doing nothing achieves the same thing.

We must also remember that executive orders can’t change legislation; they can only enforce and implement what’s already there. Yet this order repeatedly claimed to describe PPACA’s effects. Section one of the order claims that the “Act maintains current Hyde amendment funding restrictions.” Section two says that the Act “specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services … and … imposes strict payment and accounting requirements.” Section three tells us that the “Act establishes a new Community Health Center (CHC) Fund within HHS” and claims that the “Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers.” Again, considering the nature of executive orders, it appears that this one “doth describe too much.” A closer look indicates that indeed it does misstate what is in PPACA, as will be noted below.

I do not mean to claim here that the matter of all of PPACA’s effects regarding federal funding for abortion and freedom of conscience is an open-and-shut case. In order to “read” PPACA, one has to perform a fair amount of legal research. For example, one has to inquire how judges have interpreted laws containing similar, open-ended mandates (e.g. “preventive care,” “health services related to gynecology”). Jost does not engage in this inquiry, he simply writes these concerns off as “irrelevant.” In order to determine whether the limitations of the Hyde and Weldon amendments apply to the PPACA, one must not only scrutinize the PPACA language on its face, one must also look at the Hyde and Weldon amendments in their original settings. But Jost shirks this legal task as well.

The USCCB’s publicly available memoranda regularly demonstrated the appropriate amount of legal analysis and a healthy dose of “legal modesty” even after deploying facially compelling legal arguments. In its formal “Legal Analysis” (March 25, 2010) it uses language like “courts are highly likely to conclude,” that certain regulations are “highly likely to be found unenforceable,” and that the President’s Executive Order “would almost certainly be struck down as exceeding [his] authority.” Jost’s analysis, however, not only fails to respond to the USCCB’s major points, but also tends toward the unequivocal: In an NPR interview, after a question about whether Hyde-style protections were absent from various sections of the PPACA, he responded: “Well, that’s just simply not true.” He further called the USCCB’s reading of the PPACA the product of an “unwarranted belief that [members of Congress] are proceeding in bad faith,” and called Congressman John Boehner’s statements about PPACA allowing federal funding of abortions the “biggest…lie” told at the health summit.

Jost’s personal website lists 63 media appearances and 15 essays on the subject of health care reform. Yet, despite the volume, and his attempts in several essays to speak directly to the USCCB’s arguments, he never directly answers the following questions:

First, how does Jost get around the plain language of Hyde amendment—that its limits apply only to monies appropriated under “this Act” (the Labor/HHS Appropriations Act) or to monies put in a trust fund funded by “this Act”—and insist rather that the money appropriated by a different act, the PPACA, is also governed by Hyde? The PPACA specifically appropriates its own money (section 10503) for Community Health Centers. Both the PPACA and the President’s executive order state that a “new” fund is being both created and funded by the PPACA (which new fund is not a trust fund funded by the Labor/HHS Appropriations Act). Jost ignores the plain language of the executive order and simply asserts without proof that the funds appropriated for CHCs are “not segregated funds.”

Second, how can Jost state that 1970’s HHS regulations restricting the funding of abortions, which regulations derive their authority from (and explicitly reference) the Hyde statutory language, are also authoritative with respect to the new CHC fund created by the PPACA? He is overlooking basic administrative law. The USCCB simply has the better of the argument on the possibility that the PPACA money appropriated to CHCs—who are legally mandated to provide “health services related to … obstetrics or gynecology,” (see 42 U.S. C 254b)—will, without attached Hyde protections, be steered toward elective abortions.

Third, as a backup argument regarding CHCs, Jost raises the President’s executive order. But the law on separation of powers holds that such orders may not override specific statutory directives. Will Jost ever engage the law on this matter?

Fourth, because he fails to credit basic legal principles on separation of powers and administrative law, Jost also fails to engage the USCCB’s argument that federal court decisions interpreting broadly-worded federal health care mandates have required abortion funding when no specific limits were attached to the mandates. He states in his May 24 Commonweal piece that these cases “have no relevance,” because there are abortion-limiting federal regulations and an executive order in place. But as I have noted above, the regulation does not likely apply and the executive order is powerless in the face of a contrary statute.

Fifth, Jost can never bring himself to acknowledge that a new line has been crossed by the PPACA’s allowing federal subsidies to flow to health plans covering abortions. True, certain kinds of federal monies cannot pay for an abortion directly, and individual plan subscribers will pay separate premiums for abortion procedures (§1303(b)(2)), but a line has been crossed nevertheless. Pre-PPACA, the federal government would not help plans including abortion to exist and to stay in business. Post-PPACA, it will. This is not a moral line that bothers Jost or Commonweal. But to insist it should bother no one is both arrogant and naïve. It represents an incremental move toward the normalization of abortion as a “medical service.” In a country where abortion is all too frequent, it is yet another step in the wrong direction.

Sixth, regarding conscience protection, Jost never directly addresses the PPACA’s failure to protect against government discrimination based on an unwillingness to participate in abortion. The Senate’s failure to include it—by refusing to incorporate Weldon-type language—does not mean nothing; less protective language leaves religious health care providers, at the very least, in an uncertain position about their futures. Jost’s claim that §1303(c)(2) of the law suffices to prevent such government discrimination makes no sense. That section provides that the PPACA is not intended to overturn conscience protections in other federal laws. It does not apply to this new law. Nor can the President’s executive order pretend to make it so.

Overall, Commonweal and Jost succumbed—naively in my opinion—to their own and to Congressional leadership’s ardent desire to believe that everything will be just fine once the PPACA goes fully into effect. More might be offered regarding the oversights and misinterpretations found in Jost’s analyses. Enough has been said, however, to conclude at least this: the USCCB’s conclusion that the PPACA fell morally short remains measurably more convincing than Commonweal’s and Jost’s conclusion that the bishops were too scrupulous and alarmist in their reading of the PPACA.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Why is the conscience issue so neglected? One possible reason is that conscience violations are less tangible than the destruction of a living human being. Furthermore, the area of conscience protection has many moving parts, which can be hard to monitor. Conscience protection laws can shield both the religious and moral objector or just the former; they might cover many different forms of involvement (providing, referring, etc.) in one or more services (abortion, euthanasia, birth control, etc.); they could cover one or more sets of actors in the health care field (individual providers, hospitals, insurance companies, etc.) against discrimination by one or more authorities (government entities, employers, health plans, etc.). There are also various theological and philosophical grounds for different conscience claims; these might range from an objection to killing (easy to grasp) to an objection to impairing the normal functioning of the human reproductive system (more difficult for many to grasp in a world awash in birth control). Finally, there is the seemingly insoluble dilemma posed when the demand for legal conscience protection is characterized as a contest between “your right to refuse” and “my right to have.”

But conscience protection merits increased attention, particularly in the context of legislation such as PPACA which contains an extraordinary array of new mandates affecting every player in American health care—governments, insurance exchanges and insurance plans, hospitals and clinics, doctors and employers, and every single health care consumer. Some new mandates include language (“essential health benefits,” “preventive services”) which regulatory agencies and judges might easily construe to include medical services objectionable to a wide swath of individuals and institutions. PPACA furthermore leaves a good deal of discretion to federal agencies about standards for qualifying doctors or institutions or insurance companies, without conditioning that discretion upon respect for individual or institutional conscience.

It is not too much to say that—unamended—PPACA threatens the continued existence of institutions deeply embedded in the American health care system, including nonprofit hospitals, clinics and social services. These are the collaborative efforts of professionals and staff dedicated to an unusual degree to the common good. Often, they are formed around a thick moral or religious identity. They benefit a significant portion of the population, but frequently focus especially on service to the poor and underserved. If not for these types of institutions, more and more of the work of caring for the sick, the poor, and the marginalized would fall to the government or simply go undone.

Many institutions in need of conscience exemptions provide a level of health care characterized by a commitment to treating the whole person, body, mind, and spirit. They take quite seriously their professions’ demands in the way of training, judgment and integrity. They sometimes assume a more critical stance toward health care practices supported by large pharmaceutical corporations or unregulated industries. such as assisted reproductive technology. In short, they are communities of dissent playing an important role in the health care landscape.

For these reasons, such institutions should be protected for what they are; our social world would be worse off without them. Their dissenting views on what many regard as marginal issues—contraception, for example—should be respected, and a failure to protect them on marginal issues threatens to have even more serious consequences. For the arguments for coercing objecting providers and institutions to cooperate with services to which they object—such as contraception—are frighteningly applicable to services like abortion. If a religious employer is required to pay for insurance coverage of contraception on “gender discrimination” grounds (as prescription contraceptives are made only for women) it is natural to suspect that mandated coverage for abortion (as a procedure performed only upon women) is not far behind.

What, then, are some of the key flaws in PPACA where conscience is concerned? To be sure, section 1304(b)(4) of the PPACA prohibits plans that qualify to participate in state health insurance exchanges from discriminating against any health care provider or facility because of its unwillingness to provide, pay for, provide coverage of or refer for abortions. It does not, however, encompass refusals to train for abortions, nor does it protect providers or health care entities against discrimination by various government entities, or institutions receiving federal funds. These groups remain free to compel providers to cooperate in the provision of controversial interventions. Further, section 1311(c) of the PPACA indicates one scenario in which the absence of protection against discrimination by the government is a threat to conscientious objectors. This section grants the executive branch of the federal government the authority to determine providers in health care plans to some extent, but without any protection for providers with conscientious objections. The president’s executive order could have, but did not, take care of this lacuna.

PPACA does offer important protections of conscience with respect to end-of-life care: governments at all levels are prohibited from discriminating against conscientious objectors under §1553 of PPACA as to assisted suicide, mercy killing, and euthanasia. But other medical services are not covered, a disconcerting omission.

PPACA further failed to state that existing state conscience protections are not preempted by the federal law, even while it did protect against federal preemption of state abortion laws regulating abortion or abortion coverage (§1301(c)(1)). And it failed to assure individuals or institutions the ability to purchase health care insurance consistent with their moral or religious conscience.

PPACA’s conscience protection flaws must be viewed against the backdrop of the law’s new mandates, new funding streams, new categories (e.g. “preventive” and “essential” services) and new powers vested often in the Secretary of Health and Human Services (HHS). It is also instructive to understand how many conscience exemptions are already contained (either in authorizing or appropriating legislation) in other federal laws, but are not in the PPACA and therefore not applicable to its many new mandates and funding streams. A comprehensive conscience amendment proposed by Senator Tom Coburn, containing many of the conscience protections found in other federal programs, was rejected in the Senate. Thus, for example, while §1303(b)(1) provides that abortion cannot be considered an “essential health benefit” under the new law, it does nothing to exclude abortion from being included within other categories of mandated services such as “ambulatory patient services,” “prescription drugs,” or “preventive services.” All of these categories the Secretary of HHS is authorized to populate under §1302(b). Nor does §1301(b)(1) provide that other procedures or services inimical to religious or moral convictions (e.g. sterilization, contraception, genetic testing, new reproductive technologies) may not be characterized by the Secretary as mandatory benefits under any one of these categories, including “essential health benefits.” The president’s executive order also failed to so direct HHS.

The precedent that will be set by the implementation of PPACA is also crucial. Even in a country increasingly marked by government regulation, PPACA represents a sudden and significant increase in the powers of the regulatory state. The implications for citizens’ and institutions’ abilities to live with personal integrity and the freedom to make decisions consonant with a long and deeply held understanding of the common good are profound. Opponents of conscience protection know this. It shows in the “take-no-prisoners” terms in which they conduct their debate. The Washington Post article reference above called conscience one of the “bitterest debates in medicine.” And the American Civil Liberties Union characterizes the position of conscientious objectors as “tak[ing] patients out of the equation.” The National Women’s Law Center has stated that it would refuse conscience protection to pharmacists, even in cases where a particular service might be obtained from a different provider and the objecting providers are willing to provide advance public notice of their stance. PPACA provides a large stage on which such players can shift the direction of health care over the next decades.

Sadly, some of those who support health care conscience protections in principle also threw their support behind PPACA on the strength of President Obama’s promises in a health care executive order signed after passage of the PPACA. But this is the same president who has proposed to rescind Bush-era conscience regulations, having stated publicly when he was a U.S. Senator that protecting the consciences of health care providers would impair the “health care needs of women.” Furthermore, the executive order could not constitutionally alter the legislation, which therefore remains problematic for conscience in several ways. It further failed to provide assistance in those areas where it might have directed the federal agency in charge (most notably the Department of Health and Human Services) to respect conscience.

Despite PPACA’s many failures to explicitly protect individual or institutional conscientious objectors, the Catholic Health Association (CHA) endorsed it shortly before the House vote. CHA’s endorsement is very likely impairing the public’s understanding of the law’s many conscience flaws. CHA’s 2009 “blueprint” for “ethical health care law” insisted upon “respect” for “the religious and ethical values of patients and health care providers alike.” Yet, after endorsing the bill, CHA never provided any legal analysis to back up its claim that “We are confident that the reform law . . . keeps in place important conscience protections for caregivers and institutions alike.” Detailed legal analyses of the bill’s conscience flaws went unanswered, both before and after PPACA’s passage.

Currently, a bill cosponsored by Republican Joseph Pitts and Democrat Dan Lipinski (H.R. 5111) contains a variety of conscience protections which would repair many of PPACA’s most serious flaws. It merits considerable attention in the public square as current changes in health care law could represent a watershed in the field of conscience protection.


Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.

Copyright 2010 the Witherspoon Institute. All rights reserved.

In many of these cases there are good reasons for the apparent asymmetries between our treatment of the born and the unborn, reasons which do not vitiate in the slightest our claim that as regards killing, there should be no asymmetry: it is equally wrong deliberately to kill an unborn human being and a human being at any other stage of development.

But even the asymmetries have limits, and one is prominently on display, I shall argue, in the recently passed Patient Protection and Affordable Care Act (PPACA). As has been widely noted, one difference between the Senate version of health-care legislation (which was passed) and the House version, is that the latter hewed more closely to the Hyde Amendment’s restriction against any federal dollars being used, not only to pay for any abortions (except in cases of danger to the mother’s life, rape, or incest), but also against any funding of a plan that covers abortion. PPACA does fund such plans, through an elaborate mechanism designed to screen federal dollars from the actual financing of abortions.

Under PPACA, each state must have a health plan that does not provide abortion coverage; so far, so good, and many states are in the process of passing legislation ensuring that they will have no plans that do. But states are not forbidden from providing abortion-covering plans, and, insofar as they do, they must adopt the following “segregation of funds” mechanism for preventing federal funding of abortion procedures: states must take in two premium payments per pay period from each enrollee in an abortion-providing plan, one payment of which will go exclusively to abortion coverage. No federal funds are to go into this abortion “pool,” and this mechanism is supposed to do justice to Hyde’s restrictions on federal funding of abortion.

Whether such a mechanism is genuinely in keeping with the letter or spirit of Hyde, and whether such a mechanism will, in fact, have the effect of increasing the abortion rate, are important issues which I will not address here. I wish rather to make an argument regarding the participation of pro-life citizens in the abortion-covering plans.

Currently, many pro-life citizens are, undoubtedly, in abortion-covering insurance plans. Such enrollees pay a premium that ensures their participation in the plan, knowing that the money collected from all premiums together pays for a set of benefits that includes abortion coverage. Pro-life enrollees do not will such coverage, but accept it as a side effect of their legitimate attempt to provide health insurance for themselves and their families, and such acceptance is perhaps reasonable if they have no other health insurance option (if, for example, their employer offers only plans with abortion coverage).

As Richard Doerflinger has pointed out in a recent essay in the National Catholic Bioethics Quarterly, the segregation-of-funds approach raises new difficulties for pro-life enrollees, for the money that the pro-life enrollee gives to the abortion pool is known to be destined solely for abortion coverage. And the bill seems to rule out the possibility of a conscientious opt-out of the abortion pool for pro-life individuals.

This creates the possibility that individuals and families for whom the non-abortion-providing plan offers benefits inferior to those of the abortion providing plan—benefits that might be of considerable importance relative to the individual or family’s specific situation—might therefore be led to adopt the abortion-providing plan. And in such a case, their money would be going directly to the abortion pool with no opt-out available.

Some commentators have described this situation as one in which pro-life enrollees are thereby “forced” to pay for abortions; others have described the conscience of such enrollees as necessarily “compromised.” Such descriptions, it seems to me, suggest that at the end of the day it could be morally acceptable, although objectively unjust to the enrollee, that he or she nevertheless enroll in the superior, but abortion-covering plan. For only if our hypothetical pro-life citizen enrolls is he or she forced, and is his or her conscience compromised, by the compulsory contribution to the abortion pool.

I shall take for granted that the existence of plans with mandatory abortion pools is indeed objectively unjust to pro-life citizens, as it is also to the unborn. But my question here is whether pro-life citizens can indeed, as a moral matter, enroll, even if with regret, distaste, anger, etc. Such citizens would never pay for an abortion of their own; is there an asymmetry here, such that their payment into the abortion pool is nevertheless morally permissible?

Suppose that PPACA required, not an abortion pool, but an infanticide pool, or an unwanted adolescent homicide pool, or an unwanted spouse homicide pool. That is, suppose that the pool existed to make possible the killings of born human beings of any age. Payment into the pool was, as in the current PPACA, a necessary condition for a particularly beneficial type of coverage; thus there was strong motivation for paying in, and some, perhaps serious, sacrifice to be expected from not paying in. But, as in current PPACA, it was also possible not to enter the pool: other packages were available that did not involve the homicide pools.

It is abundantly clear that no such pool would be tolerated, regardless of the subtleties of an argument that paying into the pool would, or would not, involve complicity in the contemplated homicides, or even if it were possible or even inevitable that the homicides might not, in fact, be performed. We would not accept the stated possibility or desirability that others or ourselves could be victims of such a pool as the possible cost of making even these significant benefits available. The very idea of such pools is offensive and unacceptable, even if the pool never led to a single actual homicide.

But this means that in the case of current health care legislation, pro-lifers are contemplating paying into a pool with effects on the unborn that we would never find tolerable where born human beings such as ourselves or our loved ones are concerned. (This would be true even if no abortions resulted from the pool.) And this is a failure of the Golden Rule, to do unto others as you would be done by. To pay into the abortion pool would thus be unfair, and hence unjust, to the unborn.

Thus, while there is a clear danger that pro-lifers will not have available to them health-care plans that cover all their most important needs (an injustice to pro-lifers), there should be no danger that pro-lifers will be forced to pay into the abortion pool, or forced to allow their dollars to be used for abortions. Pro-life citizens will continue to work for rectification of PPACA (for example, by supporting HR 5111, which attempts to correct many of the current legislation’s inadequacies), but they must not, pending such rectification, adopt any plan with PPACA’s segregated funding for abortion, lest they truly adopt a double standard regarding the unborn.


Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His latest book, co-authored with Robert P. George, is Embryo: A Defense of Human Life (Doubleday, 2008). Tollefsen sits on the editorial board of Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.