Government

Judge allows California challenge to conscience clause law over abortion

Some doctors say the measure protects their First Amendment rights and freedom to decline to perform abortions. Others criticize its lack of an emergency exception.

By Amy Lynn Sorrel — Posted March 5, 2007

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California can proceed with its challenge of a controversial U.S. statute that strengthens physicians' ability to refuse to perform abortions because of their personal beliefs. A federal judge in January decided not to dismiss the state's lawsuit.

The Weldon Amendment, tucked into the 2005 federal health, education and labor appropriations package, extends "conscience" protections to hospitals and health plans.

Supporters say the measure was necessary because although federal conscience clause law has been on the books for 25 years, some courts have interpreted it as applying only to individuals. This allowed abortion-rights groups to skirt existing rules to force hospitals and health plans to provide and cover the services, and to pressure doctors to perform or refer women for abortions against the physicians' beliefs, proponents say.

The earlier statute and the Weldon measure prohibit federal, state and local agencies from taking action, such as legal or disciplinary measures, against doctors or institutions that opt not to offer abortions. Under both laws, government bodies found in violation risk losing federal health care funding. But the Weldon Amendment expands the penalty to money for education and employment programs.

Forty-six states, including California, have laws that allow doctors to exercise their objections to providing abortions. Only Alabama, New Hampshire, Vermont and West Virginia do not have conscience clauses, according to the Guttmacher Institute, a nonprofit organization that supports abortion rights.

In January 2005, then-California Attorney General Bill Lockyer filed a lawsuit attacking the Weldon Amendment's constitutionality because, unlike the state law, the measure does not include an exception for emergencies that threaten a pregnant woman's health or life. Another state law also requires health care facilities to provide emergency services, including abortion, or refer women elsewhere for treatment.

California authorities are concerned that they will fail to comply with the Weldon measure if they enforce the state law in emergency situations. At risk is up to $50 billion in federal funds, some unrelated to health care, said California attorney general spokesman Gareth Lacy.

The Weldon Amendment violates California's right to enforce its health care laws, Lacy said. By tying federal funding to its enforcement, the measure "attempts to regulate an area of law reserved for the states." It also interferes with women's abortion access guaranteed in Roe v. Wade, he said.

Last month, the U.S. District Court for the Northern District of California declined to overturn the measure but let California's lawsuit go forward.

Some doctors say the federal government is overreaching its authority and getting into the practice of medicine and that the Weldon provision puts them in a difficult predicament.

"Physicians and hospitals are in a no-win situation. It jeopardizes their programs, and they shouldn't have to choose between federal funding and giving emergency care to women whose lives are in danger," said Susan Penney, legal counsel to the California Medical Assn. The CMA filed a friend-of-the-court brief with Planned Parenthood Affiliates of California Inc. supporting the state.

The medical association supports conscience clauses but draws the line at medical emergencies, Penney said.

"Regardless of one's position on abortion, if this interference is allowed, it will creep into other areas [of medicine]," Penney said.

On the other hand, doctors who support the Weldon Amendment say the measure justly protects their First Amendment rights and personal beliefs, which are an important part of patient care.

"If you lose the right of conscience, then every other ethical issue is moot in the medical profession," said David Stevens, MD, CEO of the Christian Medical Assn., which opposes abortion and joined the lawsuit as a defendant in June 2006.

"Ironically, there has been this attack by those who state they are pro-choice, but they are trying to take away the choice of others," he said.

Doctors don't oppose abortion to save the life of the woman, which is the true definition of an emergency and a rare occurrence, Dr. Stevens said. But California's lawsuit, though it cites the lack of an emergency exception, is attempting to overturn the statute altogether, he noted.

The lawsuit has the potential to undermine doctors' conscience rights in other areas, such as physician-assisted suicide and stem cell research, he added.

Kurt Heath, spokesman for Rep. Dave Weldon, MD (R, Fla.), who authored the measure, said its purpose was to standardize conscience protections because of state pressures on unwilling doctors and hospitals to provide abortion services.

The Justice Dept. declined to comment for this story. In legal documents the government denies that the Weldon provision unconstitutionally violates states' interests because Congress has the right to ensure that entities getting federal dollars do not discriminate against any recipients. The federal brief argues that the amendment does not interfere with women's abortion rights because, although states cannot block access to the procedure, they are not constitutionally obligated to facilitate it.

In September 2005, a federal judge in Washington, D.C., upheld the constitutionality of the Weldon Amendment and dismissed a similar lawsuit from the National Family Planning & Reproductive Health Assn. The D.C. Circuit Court of Appeals affirmed that decision last November, and NFPRHA did not file an appeal to the U.S. Supreme Court.

No date has been set for oral arguments in the California case.

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ADDITIONAL INFORMATION

Case at a glance

State of California v. United States

Venue: U.S. District Court for the Northern District of California
At issue: Whether a federal spending provision that would block funds to states that discriminate against doctors and health care entities that choose not to provide or cover abortion-related services is unconstitutional.
Potential impact: Some doctors say that because the measure does not include an exception for medical emergencies, it could jeopardize patient care and critical federal funds. Other doctors say the provision protects their First Amendment rights and prevents states from forcing doctors to adhere to the state stance on abortion.

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Voicing moral objections

Most doctors believe they should explain to patients their moral objections to certain medical procedures and help patients find alternatives, according to a nationwide survey of 1,144 physicians published in the Feb. 8 New England Journal of Medicine.

Is it ethical for the physician to describe to the patient why he or she objects to the procedure?
Yes 63%
Undecided 15%
No 22%
Is the physician obligated to present all options to the patient, including information about getting the procedure?
Yes 86%
Undecided 6%
No 8%
Is the physician obligated to refer the patient to someone who does not object to the procedure?
Yes 71%
Undecided 11%
No 18%

Source: New England Journal of Medicine, Feb. 8

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