The Common Good Forum, February 22, 2011

by Professor Stephen Schneck, director of the Institute for Policy Research and Catholic Studies at Catholic University and board member, Catholics in Alliance for the Common Good

Many of our European forbearers came here looking for freedom from state intrusions on conscience -- and many more came troubled with historical fears from the "conscience wars" that ravaged Europe in the 16th and 17th centuries.  Diddling with conscience protection, then, is diddling with our national soul.  That is why last week's partial rescission of the Bush administration's proposed Health & Human Services (HHS) conscience regulations -- proposals penciled in the last hours of that presidency -- deserves careful scrutiny.

I find the new HHS language to be adequate.  Let me explain why.

What's narrowly at stake here for Catholics is whether Catholic doctors, nurses, clinics, and hospitals will ever be pushed by government -- national, state, local, or their agencies -- to perform "health care" that violates our moral understanding of the sanctity of life.  From the perspective of the Church, such "health care" might mean euthanasia, fetal stem cell treatments, in-vitro fertilization, morning-after pills, contraception, and abortion.  Abortion is of enormous concern.

Before the Bush administration, federal laws and regulations were in place to protect conscience.  The Constitution's First Amendment blocks government from passing any law that compromises religious beliefs or practices.  The glorious 1964 Civil Rights Act forbids discrimination for religious beliefs and requires that religious beliefs be accommodated to the extent possible in the workplace.  After Roe v. Wade (1973), a host of provisions were pushed through by Senator Frank Church (D-ID) and others that forbid HHS from withholding funds based on abortion and forbid all institutions receiving HHS money from punishing any health care worker who refuses to perform a medical procedure that "would be contrary to his religious beliefs or moral convictions." [42 U.S.C. 300a-7(c)(2)]  These legal protections are still in place and enforced.  

Because of what is at stake though -- the national soul, as I poetically put it -- it's fair to wonder what the partial rescission of the proposed (but never enacted) Bush regulations might mean.  Well, for abortion, as defined by existing statutes, the Obama changes give protection more teeth.  It clarifies and sharpens the enforcement mechanisms available to authorities.  The Obama administration would use the enforcement powers of the federal government to intervene should anyone -- including state governments -- try to force health care workers to perform abortions against their will.  Moreover, going another step beyond the Bush administration's efforts, the new regulations insist on an active education outreach to inform all health care workers about their conscience rights and how to protect them.  Catholics should cheer the strengthened protection.

Specifically struck from the Bush proposals are paperwork and a few imprecise definitions.  The old proposals would have required all health care providers to certify that they understood and were in compliance in regard to conscience.  Arguably, that paperwork mandate would no longer be needed now with real enforcement and better education about conscience rights.

Why the furor, then, about what HHS has done?  It turns on the aforementioned imprecision.  The Bush-era definitions had an artful vagueness that led some to hope (and some to fear) that perhaps future tweaking could pave the way for HHS conscience protection being used to limit the availability of morning-after pills and contraceptives.  Others complained that the vagueness might someday limit medical care in other areas -- such as AIDS treatments.  Eight states, accordingly, filed suit in federal court in opposition, precipitating the Obama administration's partial rescission of the Bush rules.

That vagueness is now gone and replaced with complete silence, devolving all questions about contraception and the like to other venues in the bureaucracy and to state governments.  Some Catholics may lament this as a lost opportunity to advance our agenda for the sanctity of life, but to my mind the Obama administration's stronger protection for conscience in regard to abortion outweighs the loss of Bush administration vagueness.

The national soul should be untroubled.  Conscience is protected.