The Obama Administration’s Attack on Roe v. Wade and Doe v. Bolton

Alliance Defence Fund
January 24th, 2012
Reproduced with permission

Casey Mattox

Thirty-nine years ago the United States Supreme Court recognized that medical professionals, let alone others, have a right not to assist in abortions in violation of their conscience. What’s that? Yes, I do have the date right. I’m talking about Roe v. Wade and Doe v. Bolton. While those cases held, wrongly, that women and their doctors have a fundamental constitutional right to kill an unborn child, they also recognized as important predicates to those decisions the right NOT to participate in abortion in violation of one’s conscience. Friday’s announcement that the Obama Administration would force employers – including nonprofit religious employers – to pay for their employees’ contraception and abortifacients is just the latest example of how the abortion industry and its friends in the Obama Administration are attacking these well established rights of conscience in ways even the authors of Roe and Doe did not envision.

Even at the time of Roe, some were concerned that legalized abortion would lead to compelled participation in abortion, a concern that was not misplaced as ACLU attorneys were working in Montana to force Catholic hospitals to perform sterilizations. The Supreme Court acknowledged but dismissed that concern, holding only that “the attending physician, in consultation with his patient, is free to determine, … the patient’s pregnancy should be terminated.” The Court cited favorably the resolution of the AMA House of Delegates stating:

RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.

Similarly, in Doe v. Bolton while the Supreme Court struck down some parts of a Georgia abortion law, it left standing a provision that allowed any medical professional or hospital to decline to participate in abortions, saying that this provision was an “appropriate protection to the individual and to the denominational hospital.” Thus, in the seminal abortion decisions that President Obama and the abortion industry celebrate this weekend, the same Court acknowledged the right NOT to assist in abortions in violation of conscience.

To be absolutely sure however, the U.S. Congress passed the Church Amendments, turning back ACLU efforts to treat Catholic hospitals receiving Medicare funds as public hospitals and force them to perform sterilizations (and ultimately abortions), and prohibiting recipients of certain federal funds from requiring medical professionals or any person to participate in abortions, sterilizations, or other procedures in violation of conscience. This was so uncontroversial it passed with only a single vote against in either house – a vote total unthinkable even for a bill to honor mom and apple pie today. In fact, noted right wing extremist Senator Ted Kennedy spoke in favor of the law on the floor of the Senate, saying that it protected the constitutional right not to participate in abortion and he supported the “full protection to the religious freedom of physicians and others.” In 1973, as the opinions reflect, there was no doubt that whatever right the penumbral emanations of the constitution gave to women and doctors to participate in abortions, it certainly protected the right not to participate in abortions or other medical procedures that violated one’s conscience.

It is in the face of this history that the Obama Administration announced on Friday that it will, with only a 1 year reprieve, fine virtually every faith-based ministry in the country that does not pay for contraception and abortifacients (Plan B, Ella, IUD, etc. included). This decision is certainly an affront to religious liberty –perhaps the greatest in our nation’s history. But it is also completely unsupported, indeed rejected by the very cases that the Obama Administration would use to support its cause. Roe and Doe, as bad as those decisions are, reject the Administration’s claim that a woman’s “right” to contraception and abortifacients justify the federal government compelling Christ-centered ministries to violate their conscience by buying these for them. When you hear abortion industry supporters rely upon those decisions to justify this assault on conscience, don’t believe it. Even Roe itself is conservative compared to the radical anti-life advocacy of the present Administration.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

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