It used to be that abortion opponents would get squirrely when their “refusal clauses”—laws that permitted providers to opt out of providing care they morally oppose—appeared to allow for instances in which a woman would die. Who wanted to be responsible for a woman’s death?
That, anyway, was more or less how the conservative Republican Curt Weldon argued an antichoice opt-out clause Bush signed into law back in 2004—a time we can now, sadly, look back on as the good old days. Today’s refusal clauses are not so kind. Two pending federal bills, introduced by Representatives Pitts and Smith, respectively, both have bigger, worse versions of existing opt-out laws.
Smith’s bill, which emerged from committee yesterday, would widen the opt-out law to apply to care that relates to any federal funding stream—Medicaid, subsidies to buy health coverage, really anything. It also would make the refusal provision, which had been subject to annual renewal, permanent.
Meanwhile, Pitts adds to the list of entities that can refuse to provide abortions. Long gone are the days when the word “conscience” need apply to an actual person. According to Pitts, hospitals can have consciences. Insurance companies can opt-out on moral grounds. Hell, entire hospitals chains could suddenly be imbued with religious conviction.
As an individual, you needn’t be directly involved in providing the abortion. Pitts would protect anyone who refuses to “participate in” abortion, language that would presumably give cover to the admissions clerk, secretary and ambulance driver who have already attempted to argue in court that their anti-abortion convictions prevent them from doing their jobs.
And while the older refusal clauses worked both ways—protecting both those who felt morally compelled to refuse abortions and those who were moved to provide them—both of the new bills are one-sided, just protecting entities that refuse to provide services. That, in case you were wondering, wasn’t an oversight. There were attempts to amend both bills to protect everyone’s moral and religious convictions on both sides of the issue, but they were defeated.
“It’s clear that these are not about protecting conscience,” Gretchen Borchelt, Senior Counsel at the National Women’s Law Center, says of the new opt-out clauses. “They’re about protecting a certain view of conscience.”
But the most disturbing part of these attempts to expand opt-out law is the language in the Pitts bill that addresses the issue of women’s emergency care dead on, if you will. Specifically, it says that the ability to deny abortions on moral grounds should trump existing federal law that requires hospitals and ambulances to provide emergency care. This, shockingly, is also not an oversight. Pitts specifically designed the bill to value fetuses over live women.
Why would an emergency abortion ever be necessary? “If a woman with serious underlying medical illness finds herself pregnant, she may have to have an abortion,” says Suzanne Poppema, MD, a former abortion provider and member of the group Physicians for Reproductive Choice and Health. “Or you might start out a pregnancy perfectly healthy and then get breast cancer or colon cancer. In that case, the ability to stay alive and take care of the children you already have may depend on terminating this pregnancy.” Taken together, Poppema estimates such situations occur “at least several hundred times a year.”
Indeed, these issues already get hashed out with some regularity, though, so far, usually at least one party in these arguments is on the religious fringe. There was the case of the nurse in New York who felt an abortion shouldn’t be considered an emergency—and she shouldn’t have to help with it—since the patient who needed it had at least six hours to live.
And, recently, a Catholic Bishop excommunicated a nun working at a Catholic hospital because she helped a pregnant mother of four in Phoenix get an abortion to save her life. In that case, there seems to be some genuine disagreement among Catholics, since the hospital and nun stood by their decision and the bishops condemned them and tried them to get them to promise they’d never perform an abortion to save a woman’s life again.
The troubling thing is that, if Pitts passes, our government will come down on the extremist side of that debate among Catholics.
“The bishops haven’t been able to get the Catholic hospitals to do what they want,” says Frances Kissling, a visiting scholar at the Center for Bioethics at the University of Pennsylvania and the former director of Catholics for a Free Choice. “Now you have this nut, Pitts, who is trying to get the hospitals to do what the bishops can’t get them to do.”
The evolution of refusal clauses has been gradual. They started back in the 1970s with the arguably decent idea that people shouldn’t be forced to do anything they find objectionable. And over the years, while the number of Catholic-run hospitals has been growing, these laws have been expanding—beyond individuals to include entities, beyond performing abortions to “participating in” them and beyond everyday situations to those of life and death.
Now, somehow, we’ve come to a decidedly indecent place, where Joe Pitts can proudly admit that, yes, even in an emergency, a corporation’s beliefs are more important than a woman’s life.