By Rabbi Louis J. Feldman
When the Roe vs. Wade decision was made on January 22, 1973, the floodgates of possibility for coercion against denominational institutions were wide open. The worst fears of the religious community were realized when a lower court ordered a Christian hospital to participate in sterilization. When Congress responded, conscience protection was a bipartisan, transideological issue. Senator Frank Church (1924-1984) stood left-of-center on the political spectrum. Congress passed the Church Amendment in 1973, granting religious institutions protection from coercion to perform medical acts contrary to their religious beliefs and convictions.
Representative Henry J. Hyde (1924- 2007) stood on the conservative side of the political spectrum. He was the chief sponsor of the Hyde Amendment, which went beyond protection for the medical caregiver and extended it to the taxpayer who would not want his/her tax money used for medical procedures that he/she found morally objectionable.
By 1978, all states had some form of conscience clause legislation. Conscience legislation was challenged in Harris v. McRae case, 449 U.S. 297 (1980). A New York district court found the Hyde Amendment to be in violation of the Fifth Amendment’s Due Process clause and the Amendment’s Establishment clause. This decision was overturned by the Supreme Court of the United States on June 30, 1980.
The concept of conscience clause protections now had the sanction of Congress and the U.S. Supreme Court. Fourteen years later, it became evident that conscience clause legislation protected only individual physicians and those in training programs. Nurses, health plans, hospitals and other caregivers needed conscience protection. This challenge was met by Representative Joseph Weldon (1953-), joined by Representative Henry J. Hyde in extending conscience protection to the entire health care profession in 2004.
The Weldon Conscience Act was challenged by the National Family Planning Association five days after it was enacted. It was upheld by the US DC Court of Appeals. On December 18, 2008, the Bush Administration finalized implementation of the Weldon Amendment, PHSA Section 245 and the Church Amendment. However, things totally changed under the Obama Administration, with the DHHS issuing a notice of rescission on March 10, 2009. This was shocking! It involved a President, acting like a monarch, overriding a decision of Congress and the U.S, Supreme Court with a simple notice of rescission.
This emboldened those in power to trample on the conscience rights of religious caregivers. The case of a devout Catholic nurse in New York City, Catherine Cenzon-Decarlo, became a national scandal. Mount Sinai Hospital (to my great shame and disgust as a Jew) threatened her with charges of insubordination and patient abandonment, possibly leading to disciplinary action the possible loss of her job and nursing license. if she would not assist with a late-term abortion involving a woman 22 weeks into her pregnancy.
An amicus curia brief from organizations representing 19,000 caregivers could not help Catherine on a state or federal level. She was even forbidden to sue her employer. Needless to say, this has led to further abuses of power by the secular establishment. The Obama Administration has declared all-out war on religious institutions.
What was once a nonpartisan matter thirty years ago is now a vicious political battlefield. We dare not rest. If we lose our rights of conscience, what other rights will be safe? As Matt Bowman, legal counsel for the Alliance Defense Fund, said “This is a battle we have to win.”