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Do abortionists deserve 'conscience clause' protection?

By Phil Lawler (bio - articles - email) | Jan 16, 2013

The New England Journal of Medicine has published an article exploring the outer limits of pro-abortion advocacy. Lisa Harris argues that if laws protect the consciences rights of doctors who do not wish to be involved in the slaughter of the unborn (although that’s not how she puts it), the law should also protect those doctors who do wish to perform abortion.

Richard Doerflinger, the veteran staff member of the US bishops’ pro-life committee, furnishes a cogent reply on the Public Discourse site.

First, Doerflinger points out, American law in the post-Roe era already protects the rights of doctors to perform abortion. Actually the law goes much further, he notes:

Moreover, what abortion proponents achieved was a legal right to choose abortion regardless of one’s reasons. Under Roe the government has no right even to ask whether an abortion is being performed for what the participant sees as “moral or religious” reasons. So when Harris asks why conscience laws don’t authorize abortions performed for “moral or religious” reasons, the answer is: Because the law already protects abortions performed for any reason.Unlike those who want to provide abortions, those who abhor abortion must often cite a specific moral or religious conviction.

(Actually Doerflinger could have gone still further. The law gives abortionists a level of legal protection that is not furnished to any other sort of enterprise. You don’t find federal marshals protecting free access to fast-food restaurants, or “bubble-zone” ordinances prohibiting demonstrations outside the doors of convenience stores.)

If a doctor can already perform an abortion for any reason, what does it mean to suggest that the government should protect his “conscience right” to do so? Doerflinger concludes that Harris is actually arguing for a public endorsement of the abortionist’s activities.

There should be a clear distinction, Doerflinger argues, between laws that prohibit certain activities and laws or public policies that require activities. The state can and does say that you cannot rob a liquor store, or run a red light. At times such prohibitions can raise questions of conscience, when the law bans activities that some people regard as righteous and necessary. (An obvious example would be the old English penal laws prohibiting Catholic worship.) In such cases, to prove that the laws are unjust, one must show that the proscribed activities are positive goods—or at a minimum, that some people have a legitimate reason for thinking of them as positive goods. In the case of abortion, the argument advanced by Harris collapses first because there are no laws prohibiting abortion, and second because society does not regard abortion as a positive good.

The standard is quite different for laws and policies that require a certain activity. Now the state is placing a burden on the conscience of any individual who considers that activity immoral, and the burden of proof is on legislators to explain why the common good requires an imposition on the individual’s conscience.

To illustrate the point, take a morally neutral case. The government may, for reasons of public safety, ban the production or sale of certain foods (for example cyclamates, the artificial sweeteners). One might argue for or against the wisdom of such a ban, but few people would claim that the policy violated the “conscience rights” of consumers. On the other hand if the government required citizens to consume certain foods—pork, say—the need for “conscience clause” protection should be immediately evident.

In pushing for “conscience clause” protection of abortionists, Doerflinger argues, Harris is really trying to remove the stigma from the abortion business. Doerflinger concludes his analysis with the suggestion that it would be better for abortion advocates to “try a bit harder to understand why, forty years after abortion’s legalization, that stigma seems to be as strong as ever.”

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