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06/01/2016

A Curious Use of the Church Amendment: What’s Good for the Goose Is Good For the Gander?

 


In 1973, Idaho Senator Frank Church
was instrumental in enacting the first “conscience clause” into federal law. It
was an immediate response to the United States Supreme Court’s decision in Roe
v. Wade.
Under the law, “public officials may not require individuals or entities that
receive federal funds to perform abortions or make facilities or personnel
available for such procedures” if “it would be contrary to the [individual or
entity’s] religious beliefs or moral convictions.” Further, the statute
prohibits entities “from engaging in employment discrimination against doctors
or other medical personnel who either perform abortion or sterilization
procedures or who refuse to perform such procedures on moral or religious
grounds.” The amendment is often called the Church Amendment after its sponsor.

 

 

            On May 2,
2016, an article by Erik Ekholm appeared in the New York Times titled “Doctor
Warned to Be Silent on Abortions, Files Civil Rights Complaint
.”
The story tells about the efforts of Dr. Diane J. Horvath-Cosper, a fully
trained obstetrician-gynecologist and currently a family planning fellow at
MedStar Washington Medical Center, to speak out about the availability of
abortion services in an attempt counter those who wish to stigmatize and
restrict abortion services.

 

            The chain
of events that have evolved began last October when Dr. Horvath-Cosper penned
an article for the Washington Post describing the fears that abortion providers
have because of threats against abortion clinics and providers.
Just a few days after the Washington Post piece appeared, Dr. Horvath-Cosper
was told to cease her public advocacy for the availability of abortion services
and clear any future requests to speak or write publically on the topic with
the hospital’s public affairs office. The several requests for permission that
she subsequently submitted were all denied. Dr. Horvath-Cosper has filed a
civil rights complaint within the Department of Health and Human Services for
being “gagged” and because she fears retaliatory action if she speaks out as an
abortion and family planning advocate.

 

            Of course,
there are many issues that might be explored with this fact pattern: Does a
physician have a professional obligation to speak publically when health
services are threatened? Does a physician-in-training have the same obligation
as practicing physician? How should a physician-in-training deal with matters
of conscience? Would employed physicians have the similar obligations and
restrictions? Is the hospital interfering with a physician’s right to speak as
protected by the First Amendment? How do employment contracts impact First
Amendment Freedom of Speech Rights? Can the entity act to protect and secure
personnel and facilities involved in providing abortion services by asking
individuals to assist in minimizing publicity about services availability?

 

            However,
one more curious question arises from wording of the Church Amendment: was the
law intended to protect abortion advocates as equally as abortion opponents? Do
conscience clauses cut both ways? Does the law protect a health care provider’s
right not to participate in abortion and sterilization services and equally
protect a provider’s right to not only participate but also to speak out openly
about that participation and the availability of services? The Civil Rights
Division’s investigation and the resolution of Dr. Horvath-Cosper’s complaint
may help answer the question. It may or may not. The plain reading of the
statute suggests that it applies to providers who perform abortion and
sterilization services.

 

 

 

 

 

 

 

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI’s online graduate programs, please visit our website.

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