Good Reading: Conscience Clause for Abortion Providers?

Should abortion providers be protected by a conscience clause ensuring they are not “marginalized” for providing abortions? This idea has been proposed by Dr. Lisa Harris of the University of Michigan. Richard Doerflinger responds to this question in a recent article on the Public Discourse. Here are some of the highlights:

[L]et us concede that most other conscience laws, at the state and federal level, speak only of a conscience right not to assist or perform abortions (and sometimes other procedures such as sterilization). Why haven’t Dr. Harris’s allies in Congress also fought over the last four decades to make these laws double-edged?

The most obvious answer is that they have seen no need to do so, because, as our highest court proclaimed in 1973, those who want to perform abortions already have the freedom to act as they wish. The Supreme Court’s ruling in Roe v. Wade, reaffirmed in cases such as Planned Parenthood v. Casey (1992), has barred government at any level from prohibiting (or as Casey says, imposing an “undue burden” on) a woman’s decision to have an abortion, or a doctor’s decision to perform that abortion, at any time up to fetal viability. Even after viability, the doctor must be free to decide that an abortion is needed for the woman’s “health” (defined to include all factors—including physical, emotional, psychological, familial, and the woman’s age—relevant to her “well-being”), and act accordingly.

Conscience laws have been needed since 1973 precisely because this new “right” of abortion seemed so absolute, so sweeping, that its proponents insisted it should be enforced as a kind of entitlement: When a woman wants an abortion, doctors and hospitals that disagree must abandon their own consciences and serve her wish. Congress and the vast majority of states responded to this claim, in the years following Roe, to affirm that the law’s protection of the woman’s decision does not deprive everyone else of their rights.

Some believe that a doctor’s refusal to perform an abortion forces a woman to act against her will. Doerflinger responds:

By contrast, if government or my employer makes me agree to do something my conscience tells me is gravely wrong, I must directly violate that negative norm—for example, the norm against killing the innocent. I have sacrificed my moral integrity. I have made myself, in my own moral judgment, into a person who kills. It is absurd to say to a pro-life physician: “No problem. You can still refuse to do an abortion next week, or at your medical practice down the road.” Further, if a doctor stands by his or her conscientious refusal, that infringes no one else’s conscience: It simply takes this doctor out of the picture, and forces no one else to do anything at all.

Someone might say: Yes it does. It forces the woman to seek her abortion elsewhere. But that is simply false. The doctor is not making her seek an abortion at all, and may be perfectly willing to offer assistance that in the doctor’s judgment is much better than abortion for the health of her and her child.

Finally, Doerflinger states that the government’s interest is not in maximizing abortions but in protecting life (even though that may not seem to be the case on the surface). He states:

No national governmental body—whether legislative or judicial—has said that government has an interest in maximizing abortions. Nor does public opinion support such a claim, as most Americans (male and female) generally describe themselves as “pro-life,” and few people say there should be more abortions than there already are.

On this point the Supreme Court’s own stance is widely misunderstood. Since 1973 the Court has ruled that government generally may not prohibit abortion. But it also has consistently acknowledged government’s legitimate secular interest in “encouraging childbirth over abortion.” And it has said this interest justifies bans on public funding of abortion, and a variety of regulations and restrictions that fall short of a ban on abortion.

In upholding a ban on federal abortion funding, the Court explained the government’s interest this way: “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life” (Harris v. McRae, 1980). This cryptic reference to the unborn as having a “potential life,” a term with no clear meaning, has given way in later cases to a straightforward recognition that by regulating abortion “the State . . . may express profound respect for the life of the unborn” (Planned Parenthood v. Casey, 1992) (emphasis added).

In its most recent abortion decision, Gonzales v. Carhart (2007), the court upheld a federal ban on partial-birth abortion, a law that it said “expresses respect for the dignity of human life.” Here the justices reaffirmed government’s “legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

In short, our laws—and even the Supreme Court’s jurisprudence—do not treat performing an abortion as something that is just as good or “conscientious” as delivering a live baby instead. Government has an interest in promoting the latter and discouraging the former. Lawmakers have no constitutional mandate, and the public has no desire, to treat them as morally equivalent.

The entire article is worth your time, especially as we approach the 40th anniversary of the Roe v. Wade decision on January 22.


Richard M. Doerflinger, “Conscientious Abortions? We Don’t Need Laws Protecting Abortionists,” The Public Discourse, January 16, 2013.