What does it tell us about the state of the abortion wars today that battles once waged over the dignity and autonomy of pregnant women have morphed into disputes over the dignity and autonomy of their health care providers instead? Two of the most pitched battles over reproductive rights in America right now turn on whether health workers can be forced to provide medical services or information to which they ethically or professionally object. But as we learn from these fights, our solicitude for the beliefs of medical workers is selective: Abortion opponents will soon enjoy broader legal protections than ever. Those willing to provide abortions, on the other hand, seem to enjoy far fewer. And women seeking reproductive services? They will continue to be caught in the tangle between the two.
The first dispute concerns a new rule purporting to protect the “right of conscience” of American health care workers. Under a new midnight regulation crammed through by the Bush Department of Health and Human Services and poised to become law any day now, any health care worker may refuse to perform procedures, offer advice, or dispense prescriptions if doing so would offend his or her “religious beliefs or moral convictions.” Congress has protected the right of physicians and nurses to opt out of providing abortions for decades. But this new rule, which President-elect Obama can overturn (although it may take months for him to do so), is far, far broader. It allows your access to birth control, emergency contraception, and even artificial insemination to turn on the moral preferences of your pharmacist, nurse, or ambulance driver.
The second dispute involves a South Dakota law that went into effect last summer after an appeals court lifted a preliminary injunction. The law requires physicians providing abortions to read from a state-mandated script advising the patient that she is about to “terminate the life of a whole, separate, unique, living human being” with whom she has an “existing relationship.” The doctor must have her patient sign each page of a form indicating that she has been warned of the “statistically significant” risks of the procedure, including “increased risk of suicide ideation and suicide.” These “risks” are almost completely unsupported by the scientific literature. A new comprehensive study released by Johns Hopkins found “no significant differences in long-term mental health between women in the United States who choose to terminate a pregnancy and those who do not.” The disparity between the empirical data and the mandatory script thus forces physicians into a Hobson’s choice between providing patients with accurate medical information and possible license suspension and misdemeanor charges.
Reading the new HHS regulations together with the mandatory South Dakota “script,” one can conclude only that those same health providers who cannot legally be compelled to perform, assist in, or clean tools for an abortion may nevertheless be compelled by law to deliver misinformation about it. The freedom and autonomy of doctors who oppose abortion are to be protected. But those willing to provide abortions can be forced to deliver a state message with which they completely disagree. Something tells me that one’s freedom and autonomy shouldn’t generally depend upon one’s moral or religious preferences.
Both the HHS’s right-of-conscience rules and the South Dakota script purport to clarify the complex legal relationship between health provider and patient, but each instead confuses and obfuscates settled law. The HHS rule as written is so ambiguous that nobody can say for certain which health care workers or medical procedures are covered, beyond establishing that both categories are broadly expanded beyond anything protected by existing right-of-conscience laws. The new rule even fails to define abortion, leaving open the possibility that anyone who thinks birth control is abortion may decline to dispense it, turning every visit to the E.R. or the pharmacy into a spin of the constitutional roulette wheel.
A recent article in the New England Journal of Medicine similarly blasts the South Dakota script for introducing novel and confusing legal language about “human beings,” “constitutional rights,” and “relationships” into an intimate medical conversation between doctor and patient, concluding that these words must be there only “to intimidate pregnant women with vaguely described and legal-sounding consequences.” As Emily Bazelon has observed, doctors there must now make intolerable decisions about whether to explain that these warnings are not supported by science.
Of course, both the HHS’s conscience law and the South Dakota script law claim to be rooted in law and science. Yet the HHS rule was pushed through over the objections of the American Medical Association, the National Association of Chain Drug Stores, and the American Hospital Association, as well as the Equal Employment Opportunity Commission. For its part, the South Dakota rule completely upends a 1992 Supreme Court determination that states may require women to receive “truthful, nonmisleading information” about abortion.
Almost completely missing from all of this fascinating legislative discussion about what health workers might be made to do and say with respect to reproductive rights are the reproductive rights themselves. Like it or not, the right to birth control, emergency contraception, and—under most circumstances—abortion is still constitutionally protected. But these are not services a woman can provide for herself, which leaves her with few rights at all when her physicians, nurses, and pharmacists are empowered by law to misinform her, withhold advice, or to deny services altogether.
Even beyond the problem of subordinating a woman’s rights to those of her health care providers, however, there looms here a larger question for the health care workers themselves: If they are indeed seeing their rights and freedoms to speak and work either hugely expanded or severely restricted based solely on which team they’ve chosen in the culture wars, they should be wondering whether any of them are really free at all.
A version of this piece appeared in this week’s issue of Newsweek.