ABORTION AND THE CONSCIENCE CLAUSE

ABORTION AND THE CONSCIENCE CLAUSEin partial fulfillment of the requirements for the degree of Master of Science in Health Services Administration State University of New York at Stony

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! MASTERS THESIS 1 3 -1 0 ,4 9 0

S IN N I, Richard John ABORTION AND THE CONSCIENCE CLAUSE.

S ta te U n iv e rs ity o f New York a t Stony Brook, M S , 1977

H ealth Sciences, h o s p ita l management

ABORTION AND THE CONSCIENCE CLAUSE

in partial fulfillment of the requirements

for the degree of

Master of Science

in

Health Services Administration

State University of New York

at Stony Brook

Augu'St » 1977

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STATE UNIVERSITY OF NEW YORK

AT STONY BROOK

Health Sciences Center' School of Allied Health Professions

Richard John Sinni

We, the thesis committee for the above candidate for the Master of Science degree in Health Services Administration, hereby recommend acceptance of the thesis.

James Brindle, A.B Committee, Chairman

Associate Dean

August , 1977

Abstract of the Thesis

ABORTION AND THE CONSCIENCE CLAUSE

■by Richard John Sinni

Master of Science

in Health Services Administration State University of New York at Stony Brook

1977

The Supreme Court decisions of 1973 were historical and radical liberalization of this country's legal attitude

on the abortion issue.

Clearly it established the right of a pregnant woman

to provide its facilities for the abortion procedures.

Does a voluntary denominational hospital have the right to manage its own affairs within the context of its moral and religious beliefs.

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Acceptance of public funds, from grants, Medicaid, Medicare, tax exempt bonds, transforms voluntary hospitals! character into quasi-public institutions, with obligations

to public service; the State Action concept.

Emergency Room services presumably reflect a hospi­ tal's willingness, hence responsibility, to offer its facilities to the public at large, without discrimination.

Can a private denominational health facility upon which a specified population must depend for the totality

of its medical services remain free to be selective in the choice of services it will provide.

Prohibiting any court from finding that receipt of public funds requires hospitals to make their facilities available for abortions was the enactment of the Health Programs Extension A c t (Section ^Olb)

This study includes recent developments in both case and statutory law and points out the trends that they appear

to signal.

Conclusions drawn are that the courts will be called upon to mediate dilemmas in which rights are in genuine conflict.

Table of Contents

Page

Abstract iii

Table of Contents v

Preface vii

I The Context of the Abortion Controversies 1

The Conflicting Theological and Legal Positions 2

The Traditional Position 2

The Modern Viewpoint ^

The Freedom of Conscience Question 7 The Special Status of Abortion 7

The Question of Cooperation 9

II The Supreme Court Decisions 11

The Two Decisions - Roe vs Wade 11

Doe vs Bolton 13 The Rights at Issue 15

The Right to Privacy 15

The Right to Refuse 17

III The Conscience Clause Issues 21

The Principal Source of Challenge 21 State Action 21

Conscience 26

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The Potential Challenges 29

The Right to Treatment 29

The Geographically Isolated Hospital 30

State Law 31

Hospital By-Laws 31

IV Findings and Implications 3^

Attitude Survey Findings 3^

Summation 36

Attitude Survey 39

Method 39

Purpose 39

Appendix A - Questionnaire ^1

This paper is a study of the legal aspects of the abortion issue The meaning of the United States Supreme Court decisions of 1973* and the impact of those decisions upon any private, denominational hospital choosing, for example, to refuse to provide its facilities for the abortion procedure The subject is divided into three chapters, with a summation following.

There is first a presentation of the opposing religious/ethical positions on this question, aand the manner in which those positions have been codified in civil law In addition, it is expedient to point out why abortion is theologically different from most other values

in terms of freedom of religion The moral basis for the legal dilemma.

The more significant findings of the 1973 Supreme Court rulings is developed, highlighting elements of that decision which are most relevant to this study and the important questions that remain unanswered.

In detailing the issues within which the conscience rights of certain denominational hospitals are both

asserted and opposed, this study includes a presentation

of recent developments in both case and statutory law,

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pointing out the trends that they appear to signal.

A surveywas undertaken to measure the attitudes

of hospitals toward the performance of abortions The findings reflecting, in no small measure, the legal vs the ethical dilemma The right of the hospitals to manage their own affairs vs the right of the pregnant woman to health care where and when she chooses This study does not attempt to draw conclusions or take sides

It is a presentation of the abortion issue, very much a part of today's world.

CHAPTER I The Contexts of The Abortion Controversies

The Supreme Court decisions of 1973» subject of the next chapter, were a historical and radical liberalization

of this country's legal attitude on the abortion issue.

These rulings gave constitutional protection to the broad (though qualified) right to self-determinatiori that a pregnant woman and her physician might have in this matter

At the same time they severely limited any restrictive interventions that a public authority or health facility might impose upon the exercise of this right.

In 1975» two years later, the Boston, Massachusetts trial of Dr Kenneth C Edelin, charged with manslaughter

in the death of an aborted fetus, gained national attention The persistent though inaccurate^ characterization of this case as an abortion trial, the interest that it generated and the emotional responses to Dr Edelin's conviction, all testify to the intense feelings that this question con­

tinues to arouse among adherents of either side of the issue.

This phenomenon is due in great part to the fact that legal formulations concerning abortion have often been the product of religious belief on the subject While the Court treated this question only from a "neutral" medical perspective, previous codifications had been more

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reflections of a particular society's theological position than its medical insights.

The Confliction Theological and Legal Positions

For purposes of "background, the two opposing value systems which have been most influential in effecting legal formulations should he sketched Both positions are

composite of interrelating historical, cultural, ethical and medical variables and are far more complex than this summary attempts to picture.

The Traditional Position

Those who advocate restrictive legal injunctions on abortion by society and the state are likely to enunciate their position in terms of traditional theological princi­ ples This "position" is by no means univocal; there are several degrees of conservatism in establishing what is morally acceptable, each the result of diverse religious and sociological factors.

The traditional belief is actually a composite of two separate doctrines developed from Natural Law theory They involve beliefs about the life of body and soul (the Sanctity of Life) and teachings about killing and self- defense (the Right to Life).

Proponents of the "Sanctity of Life" understand life, that is to say literal human existence, to begin at the actual moment of conception (or, in variations, at a point soon thereafter) They regard the new aygote as

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genetically complete, a separate entity which from the very beginning neither requires nor receives anything further from its mother other than substenance and protection.

In contrast with the modern position, humanity is viewed as related to existence, not to viability There­

fore the rights and protections of life are assigned to the fetus at the initial potentiality for personhood, not with its later capacity for independent living.

The second operational principle underlying the traditional approach to abortion deals with self-defense (the Right to Life) It too has differing degrees of in­

terpretation and strictness Historically, killing on behalf of the common good (e.g., war, capital punishment) has been regarded as entirely distinct from and much more easily justified than any questions of killing which in­

volved only individuals Generally speaking, it has been considered intrinsically evil to kill another person (and thus murder) except if that other were an unjust aggressor and if the defender did not intend to kill but only

"allowed" such indirectly in the process of his self-defense.

This teaching can be applied to the abortion proce­ dure If a fetus is regarded as having real (or potential) humanity from the very beginning, it should also have claim

to all the protections (in this case, from death) that morality and society assign to every person A more con­

servative version of this position denies unjust aggression

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by any fetus in any case The fetus is seen as invariably innocent (in intent); at worst it is a common victim with its mother (rather than perpetrator) of biological mal­

function which may endanger them Thus any lethal intervention, even on behalf of the mother's life, is viewed as an e/il when it involves the intentional, direct killing of an innocent fetus.

Until recent years a more liberal variation has been the basis for most statutory law on the subject It proposes that a mother may find it necessary to defend her life against the threat of a fetus whose presence, by force

of the circumstances of the pregnancy, constitutes an act

of unjust aggression Later modifications extended this act of self-defense to include the defense of goods equiv­ alent to life, especially physical health; later still it included mental well-being In this view, an abortion per­ formed to save the life (or its equivalent) of the mother

is a necessary act of self-defense Thus, as a morally acceptable act, it should also be a legal one.

The Modern Viewpoint

Some of the elements contributing to the emergence

of a contrary view of abortion are developments in the secularization of law, a significantly liberal evolution of theological positions, and a general shift of focus of con­ cern from the well-being of the fetus to that of the mother Scientific, cultural, psychological and philosophical

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factors have also made their contribution.

The scientific spirit is impelled to dismiss philosophical considerations and instead would place the moment of life only at a point which is tangible and veri­

fiable, namely, at the point of self-subsistence or independent life The Justices of the Supreme Court articulated this view when they chose not to decide, as a matter of law, when life begins.

We need not resolve the difficult questions

of when life begins When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive

at a consensus, the judiciary, at this point

in the development of man's knowledge, is not in a position to speculate as to the answer.3

Sociological and psychological interests have con­ tributed to a cultural milieu in which men are given to reassessing the meaning of life, or better, what it is that makes life meaningful One dimension of this concern is the current conviction that material justifications for abortion go far beyond survival In the Bolton decision the Supreme Court adopted as its own the ruling of the trial court.

We agree with the District Court, 319 F.

Supp., at 1058, that the medical judgment may be exercised in the light of all

factors physical, emotional, psycholo­

gical, familial, and the woman's age — relevant to the well-being of the patient.

All these factors relate to health This allows the attending physician the room he needs to make his best medical judgment.

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And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.^

Similarly, contemporary philosophical life views enhance different, sometimes opposing, values than those of natural law theories For one thing, they would grant

priority to the well-being of the existential, the already developed life of the mother, even to the point that it might be deleterious to relatively undeveloped fetal life.

For another, civil law is less inclined to be seen as the embodiment of society’s ethical values and is viewed more

as an effort to maximize individual rights and options.

The modern view is then in direct conflict with the traditional on almost every point of substance For the

* former, the sanctity of incipient life is simply a philo­

sophical hypothesis until some point during the third tri­

mester; a certifiable presence of life can only begin with the end of symbiosis Likewise, a fetal right to life can­ not begin to assert itself until the time of its viability during the last trimester, and even then, its existence must be subservient to its mother's general welfare In a delineation of the rights of physicians in this matter the Justices have summarized the fundamental assumption under­ lying this position.

Up to those points the abortion decision

in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.3

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The Freedom of Conscience Question

The preceding analysis intended to abstract and to contrast the more substantive elements of two abortion positions They are hardly reconcilable, whenever the essentials of one viewpoint are incorporated into law, the civil and conscience rights of proponents of the other are jeopardized or thrown into delicate balance.

The factual situation of recent generations made clear the consequences for the abortion seeker of relative­

ly restrictive legislation Since 1973 the dilemmas of compliance with law have been transferred to adherents of the traditional position This section outlines two signi­ ficant theological teachings that underly the problems of law for those who oppose abortion in the new legal environ­ ment It deals with the central importance of abortion teachings in the hierarchy of ehtical values and touches upon questions of morality which arise from cooperation in this procedure.

The Special Status of Abortion

Moral teachings may be expressed in positive or negative formulations; one is expected to do some virtuous thing or one is enjoined not to perform some evil act

Because of the semantics of language, negative formulations are necessarily more concrete and absolute That is, the performance of a prohibited act is ipso facto regarded as

a violation, and moral culpability is attributed to the

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agent as well as to his action Finally, in the hierarchy

of prohibitions, some injunctions are considered

"observances" or "counsels", others are, according to be­

lief, minor (venial), major (mortal), or even excommunicable evils.

For many who have religious objections to abortions, their beliefs on the matter are understood in terms of pro­ hibitions that are negative, automatic and at the very core

of the value system That is to say, no one may ever participate in an abortion, the mere performace of such an act is automatically presumptive of both objective evil and subjective guilt and is a violation serious enough to

deserve expulsion from the relgious community.

It has been a broad objective of the pluralistic American society that special interest groups not impose their ethical systems upon others; only mandates related to the civil and common good are to be held binding on all men While this has been generally and increasingly respected over the years, important religious values (prohibitions)

of some denominations have become the law for all men, despite belief Thus, for example, no man may be poly­

gamous, some locales may not sell liquor, few men may gamble without statutory restraint Importantly, these laws have had the effect of compelling at least external observance from even "unbelieving" fellow citizens The underlying rationale has been that certain moral evils are forbidden

tional view, even given a high level of tolerance for the freedoms of others, remain convinced that fetal existence and fetal rights must be given the equal protection of the law The proscription of abortion as a criminal act is the optimal goal of the traditional position, a civil mandate requiring cooperation in such a procedure would be the ultimate evil.

The Question of Cooperation

In its application to the civil sphere, abortion shares a further characteristic with a select number of important moral issues Under the principles of pluralism and freedom of religion men have grown accustomed to tol­

erate and even promote for their fellow citizens the legalization of modes of behavior which they themselves find morally objectionable In spite of this, and espe­

cially with core issues, they also feel compelled to avoid any significant cooperation or participation in such acti­

vities despite their legality Such non-participation applies equally to individuals and institutions In the matter of abortion, for example, both individual physicians

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and nurses of certain religious persuasion,as well as denominational hospitals of the traditional viewpoint, will feel obliged not to participate in an act immediately con­ nected with abortion in spite of any license the law may allow or promote for others.

The abortion question has thus come full circle.

A generation ago the procedure was a criminal offense and controversy centered on the exercise of freedom of con­

science (religion) for those who wished abortion.

Currently, abortion is not only protected legally as a constituional right, it is also mandated as a health ser­ vice to be offered by certain institutions The conscience problem is likewise reversed, if abortion is a constitu­ tional right for all The question arises whether some individuals, or any health facility, might refuse to cooperate in making that right effective by reason of their own demands of conscience.

1 The Edelin case was tried in 1975 Boston, Mass., and resolved not on the question of abortion’s licety, but

on what might have been done to a viable fetus after a legal abortion had occurred.

2 Several words with interpretive potential will be used

in the course of this paper, e.g., traditional, modern, conservative, liberal, etc In the context of this study they are intended to be only descriptive, without any evaluative connotation.

3 Roe vs Wade, 93 Sup Ct 705 (1973)

^ Doe vs Bolton, 93 Sup Ct 739 (1973)

CHAPTER II The Supreme Court Decisions

Until a more significant ruling is handed down by the United States Supreme Court, its decisions of January

22, 1973 will be considered the reference points for future discussions about most of the legal aspects of the abortion question On that day the Court, in separate cases, struck down dissimilar statutes from two different states Howr- ever it instructed that its opinions in each case be con­

sidered in tandem as providing a broad constitutional formula for dealing with the issues involved.

The purpose of this chapter is to review the Court's decisions from two perspectives First, it is appropriate to summarize the general highlights for those rulings in order to establish the context of this discus­

sion Second, those special elements cf the Court's decisions which are applicable to this study will be ab­

stracted and developed.

The Two Decisions

1 Roe vs Wade^ found invalid an older type restrictive criminal statute of the State of Texas which

limited occasions for abortion to saving a mother's life The Court held such statutes unconstitutional and

violative of a woman's fundamental rights Some of the

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more pertinent 'rulings of the Court in its rather lengthy opinion on this case follow.

a A mother and her physician have a consti­

tutional right to decide whether or not

to terminate her pregnancy.

b However, this right is not absolute;

at certain compelling points it is subject to important and legitimate interests of the state.

c On the otherhand the state may not indiscriminately restrict abortions

to specified circumstances and/or conditions without regard to the stage of pregnancy.

d During the first trimester the rights

of the pregnant woman are pervasive and are not subject to any special regulation by the state.

e At the end of the first trimester a compelling point is reached at which the state may have a legitimate interest

in regulations pertaining to maternal health.

f Between the first and third trimesters

a state may regulate only concerning

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the abortion procedure (not the fact) and only to the extent that such interventions relate to maternal health.

g State interests grow in substantiality

as a woman approaches term A second compelling point takes place at viability when the fetus is assumed to have achieved the capability of meaningful life out­

side the womb.

h The Court observes that viability is usually placed at about twenty-eight weeks but may occur earlier, even at twenty-four weeks At this second compelling point during the third tri­

mester, the Court rules that: "If the State is interested in protecting fetal life after viability, it may go so far

as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother."

2 Doe vs Bolton^ the Court held invalid parts

of a more recent, less restrictive statute of the State of Georgia which imposed residential and certain procedural requirements as conditions for abortion.

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It made reference to the basic enabling principles set forth

in Roe vs Wade and then went on to make several rulings relevant to this more liberal statute.

a Georgia's residency requirements limiting abortions to state residents was ruled unconstitutional since it could not be shown to be related to the legitimate interest of the state and it violated the constitutional right to travel.

b The Court found three procedural statutes, requiring

(1) that abortions be performed only in

Joint Commission on Accreditation

of Hospitals accredited hospitals, (2) that the attending physician's

judgment be confirmed by two other licensed physicians, and

(3) that abortions be approved by the

hospital's medical staff abortion committee to be constitutionally defective.

In each instance it found the requirements

to be unreasonable and over broad infringe­

ments of the patient's stated rights, and/or the physician's right to practice in that

such procedure did not relate to the particular medical problems of the abortion operation,

c The Court sustained a lower court's approval of the Georgia statute's language requiring a physician to use his best clinical judgment since its intent was for the benefit, rather than the disadvantage of the pregnant woman.

The Rights at Issue

In both cases the Supreme Court made rulings or enunciated principles which are particularly pertinent to the question of an individual or an institution.refusing

to participate in an abortion These statements are basically propositions about various rights which the Court seeks to assert, guard and/or deny as they interact with each other.

Right of Privacy

The fundamental enabling right cited in Wade is the constitutional right of personal privacy as embodied

in the l^th Amendment The Justices make no special ap­

peal to the mother's freedom of conscience The Court is thus clearly ruling that the abortion decision, at least

in the earlier stages, is not a matter of values in conflict

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