The Wrongs of Roe and the Rights of Conscience

by Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School at

Brigham Young University

An Open Lecture at J. Reuben Clark Law School, Room

206 January 22, 2010

Roe v. Wade, 410 US 113 (Jan. 22, 1973)

• Unwritten (SDP) constitutional right of privacy includes abortion decision

• No restrictions in 1st Trimester• Only regulation of medical safety in 2d Tri• After ‘viability’ (28 wks) state may restrict

– - unless nec to protect life or health of mother – including financial health, stress, etc.

DOE v. Bolton: ALI model Penal Code abortion provisions unconstitutional

Effect: All abortion laws in all 50 states inivalidated

The Five Categorical Wrongs of Roe1.Roe v. Wade has severely distorted American law2.Roe has severely distorted Americans’ practice of

abortion3.Roe has caused a serious erosion of the ethic of

respect for the sanctity of inconvenient life. 4.Roe has caused a severe erosion of the dignity of

Personhood. 5.Roe has seriously eroded rights of conscience The Rights of Conscience1.Tolerance vs. Rights2. Stand Up for Rights of Conscience

I. Fifteen Wrongs (Four Distortions) of Roe v. Wade upon Law in the U.S.

I. Structural Distortions1) Abortion Regulation nationalized

Violation of federalism; federal govt (crts) set policy2) Abortion Regulation Constitutionalized (SDP)3) Judiciary created new constitutional right (SDP) (White, J.

jud ‘fiat’) Violated Separation of Powers, Check & Balances

4) Courts (mostly fed) monitor/expand new constitutional right

5) Altered / circumvented amendment process of Art. V

II. Substantive Doctrinal Distortions6) Substantive Private Right to Kill Unborn Child read into

Constitution7) US has most radical abortion law in world (MA Glendon) 8) No restriction until 3rd trimester – viability (abortionists’

choice) 2d trimester only minor regulation - of method

9) Denial of Pro-Life First Amendment Speech & conscience rights

10) No laws requiring notice to husband permitted 11) Circumvention of parents’ rights accepted (jud bypass)12) Nearly all abortion restricts struck down for 37 years

(except $ funding, p’al notification, informe consent)

Permitted State Restrictions on Abortion

Parental consent or notificationrequired for minors 35 states (15 without)

State abortion funding restricted 33 states (17 fund - 4 states voluntarily, 13 under court order)

Mandatory counseling 32 states (18 without)

Waiting periods 24 states (26 without)

OK private insurance to exclude coverage for abortion 4 states (46 without)

Source: PRCH & GI 08, Overview; Guttmacher, 2007; ACLU http://www.aclu.org/FilesPDFs/map.pdf (2004) (seen 1/17.2009)

III. Professional Distortions13)Shabby reasoning, shameful misstatements,

outcome-determinative analysis Bickel, Ely, Epstein, Cox

IV. Political Distortions14)Every judiical nomination is a fight over Roe v.

Wade; it dominates and distorts the SCOTUS nominations especially.

15)It distorts electoral politics, esp. federal. Keeping the lid on Roe is a life-or-death political struggle.

II. The Wrongs of Roe on Life/Abortion in the USA : The Killing Continues

• Over 50 million reported lives of living human beings (children in utero) destroyed by abortion in the USA since Roe (1973)

• Plateau of abortion level (slow drop) if account for demography

• 1.21 million abortions reported in 2005 (AGI July 08).

• 47% o f all women having abortions are repeaters• Nearly ¼ of all pregnancies end in abortion• 37% of all abortions after at 9 or more weeks!!• Less than 2 percent (2%) of all abortions for ‘hard

cases’

Year Number Abortions

Abortion Rate/1000 Women

Abortion Ratio/ 100 Pregnancies

% Abortion Repeaters

1972 587,000 -- -- --

1975 1,034,000 21.7 24.9 15.2 (74)

1980 1,554,000 29.3 30.0 33%

1985 1,589 28.0 29.8 41%

1990 1,609,000 27.4 28.0 45%

1995 1,359,400 22.5 25.9 47%

2000 1,313,000 21.3 24.5 48%

2005 1,206,200 19.4 22.4 47%

Abortions: 1972-2005 (AGI data)*

*The Alan Guttmacher Institute produces the most reliable data on abortions in the United States. The AGI estimates that they 3-6% of all abortions are unreported. (CDC data was about 12-19% lower than AGI because of CDC’s passive collection of official data until 1998 when CDC quit reporting estimates for some states – CA, NH, & sporadically other states.) 2005 still latest date from AGI – see In Brief, Facts on Induced Abortion in the United States, http://www.guttmacher.org/pubs/fb_induced_abortion.html (July 2008) (seen January 22, 2010)

Source: Abortion StatisticsNRCL (seen Jan. 22, 2010)

Abortions, 1972-2005

Many women obtaining abortions have had a previous abortion, but the proportion has stabilized over time

(GITiA08)

% of abortions obtained by women who had a previous abortion

0%

20%

40%

60%

80%

100%

1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003

Number of US Abortions per 1,000 women 15-44, by year

Source: AGI – see In Brief, Facts on Induced Abortion in the United States, http://www.guttmacher.org/pubs/fb_induced_abortion.html (July 2008) (see 17 Jan 2009)

About one-third of American women will have had an abortion by age 45.

98

171515

202021

0

5

10

15

20

25

30

UnitedStates

Australia Sweden Denmark Canada England &Wales

Germany Netherlands

Source: Source: PRCH &GI 08, Overview; Sedgh, 2007

Abortions per 1,000 women

US Abortion Rate Higher Than Many Nations Countries

Karen Pazol, et al, Abortion Surveillance – United States, 2006 CDC, MMWR (Nov. 27, 2009) (49 reporting, except CA, LA, NH)

846,181 abortions (down 5.7% since 10 yrs ago) 16.1 abortions / 1000 wo 15-44 (down 8.8% - 10yr)236 aborts / 1000 live births (down 14.8% - 10yr)57% aborts on women 20-29 yrs83.5% aborts on unmarried women 58.6% of abortions (41 areas rep) on women who had previously

had one or more abortion (32.3% 2 or > prior abs)Gesta known for less than half (suspect nonreporting

disproportionately late term):62% =/< 8 wks; 3.7% 16-20 wks; 1.3 % =/>21 wks; 2.1% unk. 116,613 aborts on women =/< 18 (358/1000 live b)

• Karen Pazol, et al, Abortion Surveillance – United States, 2006, CDC, MMWR (Nov. 27, 2009) at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5808a1.htm?s_cid=ss5808a1_e (seen 15 Jan 2010)

III. Roe has Cause Erosion of the Ethic of Respect for Life

• More killing of aged, infirm, disabled, handicapped

• More Child abuse • More Violent Crime• Less compassion, humanity,

sensitivity• “Hearts of men wax cold”

William Blackstone, Commentaries on the Common Law of England (1756)

• Rights of Persons:“Life is the immediate gift of God, a right

inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light but merely as a heinous misdemeanor.”

Declaration of Independence & Constitution

• “all Men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”

-The Declaration of Independence

• “nor deprive any person of life . . . Without due process of law” Fifth Amendment & Fourteenth Amendments

Is abortion not always lethal, always deadly, always destructive of the autonomously developing, separate, biological and human life in utero?

Is killing to resolve personal problems any better than killing to resolve social problems?

Is abortion not a form – the most lethal form - of child abuse?

IV. The Erosion of the Dignity of Personhood: Slavery and Abortion

Slavery • Reject humanity of slaves• Deny ‘personhood’ slaves• Clm: Best for slaves• Clm: No right tell slaveowner• Clm: Slave owners right choose• Clm: Constitution protects• Clm: abolition lead to chaos• Clm: unfair impose on class (S)• Clm: person when set free• Clm: leave alone, gradual abol• Hierarchical view race• Vigorour suppress abolitionist speech• Lincoln: Is a man not a man because

he is Black?

Abortion• Reject humanity of unborn child • Deny personhood of human UC• Best for unwanted unborn cren• No right tell woman what to do• Woman’s right to choose claim• Constitution protects• Restrict abortion lead to chaos • Unfair impose burden women• Person when born • Not restrict, become ‘rare’• Hierarchical view human life• Draconian laws restrict pro-life free

speech• Pro-Life: Is a child not a child because

she is yet in the womb?

Nillson 1966 photo, 11-week fetus

Nillson 1966 photo, 29-week fetus

21 week fetus grasping surgeon’s finger

V. Roe has led to serious erosion of individual rights of conscience.

Recent examples: 1) Pharmacists fired for exercising conscience right by referring patient

seeking non-therapeutic abortifacient drug to another pharmacist in the same pharmacy, or in a nearby pharmacy. 2) Nurses compelled over conscience objections to participate in abortions and sterilizations, or demoted, or fired. (ongoing) 3) Hospital/clinics sued for refusal to provide services/facilities for abort4) Catholic hospitals denied certificates/approvals to build, expand, merge, acquire health facilities because of ethical standards.5) Students denied admission to medical school; or denied prime internships or residencies or training because oppose elective abortion; mandate training in elective abortion. 7) Catholic Charities requires to provide abortion coverage; not ‘relig’ 8) Insurance for abortion mandated9) Current proposed Congress: overturn/circumvent Hyde amendment.

The Rights of Conscience: Fundamental Principle: Two competing views in 18th century (Founding Era) America

about protection of religious rights of conscience.

One view was that protection of conscience was a matter of utilitarian tolerance and prudent political accommodation – toleration.

The other view was that protection for conscience was and is a matter of a fundamental right – a basic human right.

It makes a big difference whether respect for another’s moral convictions is given simply as a matter of tolerance (to be suspended when outweighed by other political considerations), or whether that is a matter of your neighbor’s basic civil rights.

James Madison was the most eloquent and effective advocate of the second view (rights of conscience are fundamental rights).

The Virginia Declaration of Rights initially guaranteed “fullest toleration” of religion.

Madison amended it to provide that “all men are entitled to the full and free exercise of [religion] according to the dictates of conscience.”

Madison’s Memorial and Remonstrance used the language of rights, not mere toleration: “The equal right of every citizen to the free exercise of his Religion according to the dictates of conscience is held by the same tenure with all our other rights.”

He described it as “an unalienable right,” and explained: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. . . . It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.”

• James Madison, Memorial and Remonstrance Against Religious Assessments, ¶ 15; Id. at ¶ 1. (emphasis added).

Madison further wrote in Memorial and Remonstrance: “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of a Civil Society, who enters into any subordinate Association, must always do it with reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.” (Id. at ¶1.)

The individual’s right of conscience is tied to and derives from his pre-existing and superior duty to God. If you require a person to betray his first, most sacred, duty (to God), you have destroyed the moral basis for obedience to the unenforceable, and reduced law to mere coercion.

Madison’s view was adopted by the Founders of the American Constitution/republic.

It still is futile to expect citizens in a free democracy to obey the laws, if the laws do not allow them to be faithful to their God and obedient to His laws. Denial of rights of conscience of health care providers undermines the moral foundation for the moral claims of others to access to controversial services. If one’s own moral rights of conscience are not protected by law, is seems incongruous to be asked to respect another’s (dubious) moral claim for access.

III. Practical Protections and AccommodationsProfessor Kent Greenawalt: “In principle, people should not have to render services that

they believe are forbidden directly by God or are deeply immoral. However, any privilege to refuse needs to be compatible with individuals being informed about and being able to acquire standard medical services and drugs, and with health care institutions and pharmacies not having to turn handsprings to have personnel on hand to provide what is needed.”

“[P]eople who can get treatment or drugs elsewhere and have adequate information about alternative possibilities have a much less powerful claim that refusal impinges on them to an impermissible degree.” (Kent Greenawalt, Objections in Conscience to Medical Procedures: Does Religion Make a Difference? 2006 U. Ill. L. Rev. 799, 823-24.)

What does failure to protect rights of conscience of health care providers (doctors, nurses, pharmacists, etc.) do for the substructure of our constitutional freedoms and government?

Does requiring individuals (alone or collectively) to violate their conscience and do / facilitate acts that they believe to be evil strengthen or weaken the foundation of liberty in our Republic? Do we have enough police otherwise?

Would the Enron, Arthur-Anderson, Bernie Madoff scandals and subprime lending mortgage crisis have been avoided if people had been taught to follow conscience rather than focus on regulations (and their avoidance)?

Elie Wiesel, Night

• “How was it possible that men, women, and children were being burned and that the world kept silent. . . .”

(Night, p. 32, 2006 ed.) (retranslation)

Elie Wiesel, Nobel Speech 1986

• “I swore never to be silent . . . . We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor . . . .”

Id. at 117, 118.

Gordon B. Hinckley, Standing for Something (2000)

What we desperately need today on all fronts . . . are leaders, men and women who are willing to stand for something. We need people . . . who are willing to stand up for decency, truth, integrity, morality, and law and order . . . even when it is unpopular to do so – perhaps especially when it is unpopular to do so.

. . . .. . . Never before, at least not in our generation, have the forces of evil been so blatant, so brazen, so aggressive as they are at the present time. . . . . . . .We are involved in an intense battle. It is a battle between right and wrong, . . . . [W]e desperately need men and women who, in their individual spheres of influence, will stand for truth in a world of sophistry. . . . We need moral men and women, people who stand on principle, to be involved in the political process. . . .

Thank you

Practical Examples of Balancing Rights of Conscience and Accommodation of Access:

American Pharmaceutical Association 1998 policy protecting rights of conscience of pharmacists and accommodation of access by “a system to ensure patient access to legally prescribed therapy without compromising the pharamcists right of conscientious refusal,” such as toll-free telephone access to information about pharmacies and pharmacists who will fill controversial prescriptions that would violate the rights of conscience of other pharmacists.

Washington state successfully implemented that program. Church Amendment of 1973

Expansions Danforth and Weldon amendmentsState conscience protection provisions (all states but AL, NH, VT)

IV. Conclusion: We Can Do Both

Tensions between religious values and professional obligations can be reconciled by respecting both interests.

It takes more time, effort and creativity.

That irritates those ideologues whose goal is maximum ease and efficiency of delivery of controversial health services.

That also may be one reason why profit-driven or cost-conscious health care institutions and organizations are impatient with efforts to protect rights of conscience.

While protecting rights of conscience and of access to services may sometimes requires some cost or sacrifice on both sides, in the long run, it takes less time and expense than the litigation, deep resentment, and backlash that denial of the first American right – the rights of religious conscience -- inevitably produce.