“Conscience clauses” have become increasingly common in laws about health care as state legislatures seek to limit people’s access to services that they don’t approve of but have not, as yet, been able to make illegal. Of course, it started with abortion care, with doctors being allowed to “opt out” of training requirements for abortion (not that anyone was ever required to “opt in”), and gained momentum with the development of mifepristone (formerly RU-486), the abortion pill, ensuring that pharmacists would not have to fill prescriptions for it if they opposed abortion.
Of course, mifepristone is only sold directly to providers, so pharmacists are not called upon to fill these prescriptions, so the laws moved on to whether pharmacists could refuse to fill prescriptions for emergency contraceptives (the “morning after pill”). A lot of jurisdictions passed laws under the guise of the “conscience clause”, some even permitting pharmacists to not even dispense regular contraceptive pills. Which, of course, can be used for emergency contraception. And which, of course, is not abortion. But so much for the facts.
It is not coincidental that these restrictions have focused on women’s reproductive health. It appears that legislators’ concern is not about “right to life” (which many make a joke of with their opposition to anything that might help people after they are born), and fall into the arena of “women’s reproduction and the things associated with it, like sex, make us uncomfortable and so we don’t want to be involved with it”. In addition, there is persistent undertone of “…after all, these are women, people who do not understand how to take care of themselves and make their own decisions, so we have to do it for them.” This is pretty clearly part of the agenda of the religious right – limiting the ability of women to make their own decisions about their bodies.
Indeed, a victory for women was achieved when emergency contraception was made available without a prescription – and then a step backward was taken when HHS Secretary Kathleen Sebelius overruled recommendations from the FDA and prevented its availability without a prescription to women under 17. Now that makes no sense at all if one is concerned about their health – women under 17 are the most likely to have sex without contraception, to be pressured into sex by men, to not be able to plan whether they are going to have sex and thus possibly become pregnant, to have the self-efficacy to walk into a pharmacy and ask for emergency contraception. So we are going to make it particularly difficult for them? Well, it does make sense for an agenda that says “limit rights where we can limit them” and we can move on from there. Yes, these girls are the most vulnerable. So let us victimize them.
What is particularly upsetting is the usurpation of the language of conscience by those who would restrict women’s reproductive options. We do not hear of conscience clauses about not dispensing Viagra, Cialis, and the like because the loss of ability to have an erection with age is natural. Or for that matter, against cosmetics, or drugs that will treat God-given genetic chronic diseases. A joke, but not so funny, supposes a Christian Scientist pharmacist who refuses to supply any medication. This usurpation of language is parallel to the current ownership of the language of “life” by the anti-abortion movement. The implication is that pro-choice people do not value life, but our argument is that we value the life of the born – the woman, children who are alive, and those who might be born.
Into this discussion comes the voice of Lisa H. Harris, in a New England Journal of Medicine “Perspective”, September 13, 2012, “Recognizing conscience in abortion provision”. Dr. Harris argues that the provision of abortion is also driven by conscience, and that this right to conscience has not been protected. So firmly has “conscience” been associated in public discourse with the right to refuse to do abortion, the idea that conscience can be, and is, central to the decision of the abortion provider is almost jarring. And yet it is certainly true.
Harris refers to the work of the physicians who practiced abortion at great risk to themselves, their reputations and their ability to continue to practice medicine in the years before Roe v. Wade:
The conclusion that abortion provision is indeed “conscientious” by this standard is best supported by sociologist Carole Joffe , who showed in Doctors of Conscience that skilled “mainstream” doctors offered safe, compassionate abortion care before Roe. They did so with little to gain and much to lose, facing fines, imprisonment, and loss of medical license. They did so because the beliefs that mattered most to them compelled them to. They saw women die from self-induced abortions and abortions performed by unskilled providers. They understood safe abortion to be lifesaving. They believed their abortion provision honored ‘the dignity of humanity’ and was the right — even righteous — thing to do. They performed abortions ‘for reasons of conscience.’”
There are no doctors who showed more courage, more conscience, than these pre-Roe abortion providers. But the power of this commitment, of this conscience-driven provision of abortion, has not lessened in the post-Roe years. The ever-more restrictive laws passed by state legislatures, seasoned with the constant picketing and harassment of patients, leavened with bombings and fires, and finally consummated by the murder of abortion providers, should leave no doubt about the moral strength of these people. The testimonies on “Why I Provide Abortions”, on the website of Physicians for Reproductive Choice and Health (PRCH), or those its video “Voices of Choice” (including the voice of George Tiller, MD, murdered in 2009; see my post In Memoriam George Tiller, May 31, 2009) are clear and moving; they come from physicians who know that, if they do not provide safe abortions, women will obtain them unsafely at the risk of their lives:
"My experience goes back to my residency training at Boston City Hospital. I was appalled by the intermittent but steady stream of otherwise healthy young women dying in front of my eyes from septic shock due to unsterile, botched procedures.”
"When a woman acts in a responsible way, doing what she believes is in her best interests and the best interests of her family, she's being moral.”
“I believe women shouldn't have to explain to governments, religious groups, those of another opinion or the patriarchy at large that they've made a decision to deal with the condition of their own bodies.”
Dr. Harris indicates, correctly, that the same standards of conscience should be applied equally: “Certainly, if abortion providers’ conscience-based claims require scrutiny, so do conscience-based refusals, to ensure that refusals are indeed motivated by conscience and not by political beliefs, stigma, habit, erroneous understanding of medical evidence, or other factors.”
There are many people opposed to abortion who are sincere in their opposition and motivated by conscience. Beyond that, e.g., refusing to fill contraceptives, is getting to the point that maybe it is time to seek a new field of work. But to imply that concern for women and conscience only apply to abortion and contraception opponents and deny the conscience and morality of those who provide such care is unethical and dishonest. George Tiller’s motto was “Trust Women”, but many people don’t.
Another voice from “Why I Provide” says it simply and profoundly:
"I provide abortions because I value the life and health of my patients, and because when abortion is not legal, safe and accessible, women suffer and die.”
That is a conscience clause.