The Wrongs of Roe and the
Rights of Conscience
by Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School at
Brigham Young University
An Open Lecture at
J. Reuben Clark Law School, Room 206
January 22, 2010
Roe v. Wade,
410 US 113 (Jan. 22, 1973)
• Unwritten (SDP) constitutional right of privacy
includes abortion decision
• No restrictions in 1st Trimester
• Only regulation of medical safety in 2d Tri
• After ‘viability’ (28 wks) state may restrict
– - unless nec to protect life or health of mother –
including financial health, stress, etc.
DOE v. Bolton: ALI model Penal Code abortion
provisions unconstitutional
Effect: All abortion laws in all 50 states inivalidated
The Five Categorical Wrongs of Roe
1. Roe v. Wade has severely distorted American law
2. Roe has severely distorted Americans’ practice of
abortion
3. Roe has caused a serious erosion of the ethic of
respect for the sanctity of inconvenient life.
4. Roe has caused a severe erosion of the dignity of
Personhood.
5. Roe has seriously eroded rights of conscience
The Rights of Conscience
1. Tolerance vs. Rights
2. Stand Up for Rights of Conscience
I. Fifteen Wrongs (Four Distortions) of
Roe v. Wade upon Law in the U.S.
I. Structural Distortions
1) Abortion Regulation nationalized
Violation of federalism; federal govt (crts) set policy
2) Abortion Regulation Constitutionalized (SDP)
3) Judiciary created new constitutional right (SDP) (White, J.
jud ‘fiat’)
Violated Separation of Powers, Check & Balances
4) Courts (mostly fed) monitor/expand new constitutional
right
5) Altered / circumvented amendment process of Art. V
II. Substantive Doctrinal Distortions
6) Substantive Private Right to Kill Unborn Child read into
Constitution
7) US has most radical abortion law in world (MA Glendon)
8) No restriction until 3rd trimester – viability (abortionists’
choice)
2d trimester only minor regulation - of method
9) Denial of Pro-Life First Amendment Speech & conscience
rights
10) No laws requiring notice to husband permitted
11) Circumvention of parents’ rights accepted (jud bypass)
12) Nearly all abortion restricts struck down for 37 years
(except $ funding, p’al notification, informe consent)
Permitted State Restrictions on Abortion
Parental consent or notification
required for minors
35 states (15 without)
State abortion funding restricted 33 states (17 fund 4 states voluntarily, 13 under court order)
Mandatory counseling
32 states (18 without)
Waiting periods
24 states (26 without)
OK private insurance to exclude
coverage for abortion
4 states (46 without)
Source: PRCH & GI 08, Overview; Guttmacher, 2007; ACLU
III. Professional Distortions
13)Shabby reasoning, shameful misstatements,
outcome-determinative analysis
Bickel, Ely, Epstein, Cox
IV. Political Distortions
14)Every judiical nomination is a fight over Roe v.
Wade; it dominates and distorts the SCOTUS
nominations especially.
15)It distorts electoral politics, esp. federal.
Keeping the lid on Roe is a life-or-death
political struggle.
II. The Wrongs of Roe on Life/Abortion
in the USA : The Killing Continues
• Over 50 million reported lives of living human
beings (children in utero) destroyed by abortion in
the USA since Roe (1973)
• Plateau of abortion level (slow drop) if account for
demography
• 1.21 million abortions reported in 2005 (AGI July
08).
• 47% o f all women having abortions are repeaters
• Nearly ¼ of all pregnancies end in abortion
• 37% of all abortions after at 9 or more weeks!!
• Less than 2 percent (2%) of all abortions for ‘hard
cases’
Abortions: 1972-2005 (AGI data)*
Year
Number
Abortions
1972
587,000
1975
Abortion
Rate/
1000
Women
Abortion
% Abortion
Repeaters
Ratio/ 100
Pregnancies
--
--
--
1,034,000
21.7
24.9
15.2 (74)
1980
1,554,000
29.3
30.0
33%
1985
1,589
28.0
29.8
41%
1990
1,609,000
27.4
28.0
45%
1995
1,359,400
22.5
25.9
47%
2000
1,313,000
21.3
24.5
48%
2005
1,206,200
19.4
22.4
47%
*The Alan Guttmacher Institute produces the most reliable data on abortions in the United States.
The AGI estimates that they 3-6% of all abortions are unreported. (CDC data was about 12-19% lower
than AGI because of CDC’s passive collection of official data until 1998 when CDC quit reporting
estimates for some states – CA, NH, & sporadically other states.) 2005 still latest date from AGI – see
In Brief, Facts on Induced Abortion in the United States,
http://www.guttmacher.org/pubs/fb_induced_abortion.html (July 2008) (seen January 22, 2010)
Source: Abortion Statistics
NRCL (seen Jan. 22, 2010)
Abortions, 1972-2005
Many women obtaining abortions have had a previous
abortion, but the proportion has stabilized over time
(GITiA08)
% of abortions obtained by women who had a previous abortion
100%
80%
60%
40%
20%
0%
1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003
Number of US Abortions per 1,000
women 15-44, by year
About one-third of American women will have had an abortion by age 45.
Source: AGI – see In Brief, Facts on Induced Abortion in the United States,
http://www.guttmacher.org/pubs/fb_induced_abortion.html (July 2008) (see 17 Jan 2009)
US Abortion Rate Higher Than Many
Nations Countries
Abortions per 1,000 women
30
25
21
20
20
20
15
15
17
15
8
10
9
5
0
United
States
Australia
Sweden
Denmark
Canada
England &
Wales
Germany Netherlands
Source: Source: PRCH &GI 08, Overview; Sedgh, 2007
Karen Pazol, et al, Abortion Surveillance – United States, 2006
CDC, MMWR (Nov. 27, 2009) (49 reporting, except CA, LA, NH)
846,181 abortions (down 5.7% since 10 yrs ago)
16.1 abortions / 1000 wo 15-44 (down 8.8% - 10yr)
236 aborts / 1000 live births (down 14.8% - 10yr)
57% aborts on women 20-29 yrs
83.5% aborts on unmarried women
58.6% of abortions (41 areas rep) on women who had previously
had one or more abortion (32.3% 2 or > prior abs)
Gesta known for less than half (suspect nonreporting
disproportionately late term):
62% =/< 8 wks; 3.7% 16-20 wks; 1.3 % =/>21 wks; 2.1% unk.
116,613 aborts on women =/< 18 (358/1000 live b)
•
Karen Pazol, et al, Abortion Surveillance – United States, 2006, CDC, MMWR (Nov. 27, 2009) at
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5808a1.htm?s_cid=ss5808a1_e (seen 15 Jan 2010)
III. Roe has Cause Erosion of the
Ethic of Respect for Life
• More killing of aged, infirm, disabled,
handicapped
• More Child abuse
• More Violent Crime
• Less compassion, humanity, sensitivity
• “Hearts of men wax cold”
William Blackstone, Commentaries on the
Common Law of England (1756)
• Rights of Persons:
“Life is the immediate gift of God, a right inherent
by nature in every individual; and it begins in
contemplation of law as soon as an infant is able
to stir in the mother’s womb. For if a woman is
quick with child, and by potion or otherwise,
killeth it in her womb; or if anyone beat her,
whereby the child dieth in her body, and she is
delivered of a dead child; this, though not murder,
was by the ancient law homicide or manslaughter.
But the modern law doth not look upon this
offense in quite so atrocious a light but merely as
a heinous misdemeanor.”
Declaration of Independence & Constitution
• “all Men are created equal, that they are
endowed by the Creator with certain unalienable
Rights, that among these are Life, Liberty, and the
Pursuit of Happiness”
-The Declaration of Independence
• “nor deprive any person of life . . . Without due
process of law” Fifth Amendment & Fourteenth
Amendments
Is abortion not always lethal, always deadly,
always destructive of the autonomously
developing, separate, biological and human
life in utero?
Is killing to resolve personal problems any better
than killing to resolve social problems?
Is abortion not a form – the most lethal form - of
child abuse?
IV. The Erosion of the Dignity of
Personhood: Slavery and Abortion
•
•
•
•
•
•
•
•
•
•
•
•
•
Slavery
Abortion
Reject humanity of slaves
Deny ‘personhood’ slaves
Clm: Best for slaves
Clm: No right tell slaveowner
Clm: Slave owners right choose
Clm: Constitution protects
Clm: abolition lead to chaos
Clm: unfair impose on class (S)
Clm: person when set free
Clm: leave alone, gradual abol
Hierarchical view race
Vigorour suppress abolitionist speech
Lincoln: Is a man not a man because
he is Black?
•
•
•
•
•
•
•
•
•
•
•
•
Reject humanity of unborn child
Deny personhood of human UC
Best for unwanted unborn cren
No right tell woman what to do
Woman’s right to choose claim
Constitution protects
Restrict abortion lead to chaos
Unfair impose burden women
Person when born
Not restrict, become ‘rare’
Hierarchical view human life
Draconian laws restrict pro-life free
speech
• Pro-Life: Is a child not a child because
she is yet in the womb?
Nillson 1966 photo, 11-week fetus
Nillson 1966 photo, 29-week fetus
21 week fetus grasping surgeon’s finger
V. Roe has led to serious erosion of individual rights
of conscience.
Recent examples:
1) Pharmacists fired for exercising conscience right by referring patient
seeking non-therapeutic abortifacient drug to another pharmacist in the
same pharmacy, or in a nearby pharmacy.
2) Nurses compelled over conscience objections to participate in
abortions and sterilizations, or demoted, or fired. (ongoing)
3) Hospital/clinics sued for refusal to provide services/facilities for abort
4) Catholic hospitals denied certificates/approvals to build, expand,
merge, acquire health facilities because of ethical standards.
5) Students denied admission to medical school; or denied prime
internships or residencies or training because oppose elective abortion;
mandate training in elective abortion.
7) Catholic Charities requires to provide abortion coverage; not ‘relig’
8) Insurance for abortion mandated
9) Current proposed Congress: overturn/circumvent Hyde amendment.
The Rights of Conscience: Fundamental Principle:
Two competing views in 18th century (Founding Era) America
about protection of religious rights of conscience.
One view was that protection of conscience was a matter of
utilitarian tolerance and prudent political accommodation –
toleration.
The other view was that protection for conscience was and is a
matter of a fundamental right – a basic human right.
It makes a big difference whether respect for another’s moral
convictions is given simply as a matter of tolerance (to be
suspended when outweighed by other political
considerations), or whether that is a matter of your
neighbor’s basic civil rights.
James Madison was the most eloquent and effective
advocate of the second view (rights of conscience
are fundamental rights).
The Virginia Declaration of Rights initially guaranteed “fullest
toleration” of religion.
Madison amended it to provide that “all men are entitled to the full
and free exercise of [religion] according to the dictates of
conscience.”
Madison’s Memorial and Remonstrance used the language of
rights, not mere toleration: “The equal right of every citizen to
the free exercise of his Religion according to the dictates of
conscience is held by the same tenure with all our other rights.”
He described it as “an unalienable right,” and explained: “The
Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to
exercise it as these may dictate. . . . It is the duty of every man to
render to the Creator such homage, and such only, as he believes
to be acceptable to him.”
• James Madison, Memorial and Remonstrance Against Religious
Assessments, ¶ 15; Id. at ¶ 1. (emphasis added).
Madison further wrote in Memorial and Remonstrance:
“Before any man can be considered as a member of Civil
Society, he must be considered as a subject of the Governor
of the Universe: And if a member of a Civil Society, who
enters into any subordinate Association, must always do it
with reservation of his duty to the general authority; much
more must every man who becomes a member of any
particular Civil Society, do it with a saving of his allegiance
to the Universal Sovereign.” (Id. at ¶1.)
The individual’s right of conscience is tied to and derives from
his pre-existing and superior duty to God. If you require a
person to betray his first, most sacred, duty (to God), you
have destroyed the moral basis for obedience to the
unenforceable, and reduced law to mere coercion.
Madison’s view was adopted by the Founders of the American
Constitution/republic.
It still is futile to expect citizens in a free democracy
to obey the laws, if the laws do not allow them to
be faithful to their God and obedient to His laws.
Denial of rights of conscience of health care
providers undermines the moral foundation for
the moral claims of others to access to
controversial services. If one’s own moral rights of
conscience are not protected by law, is seems
incongruous to be asked to respect another’s
(dubious) moral claim for access.
III. Practical Protections and Accommodations
Professor Kent Greenawalt:
“In principle, people should not have to render services that
they believe are forbidden directly by God or are deeply
immoral. However, any privilege to refuse needs to be
compatible with individuals being informed about and being
able to acquire standard medical services and drugs, and
with health care institutions and pharmacies not having to
turn handsprings to have personnel on hand to provide
what is needed.”
“[P]eople who can get treatment or drugs elsewhere and have
adequate information about alternative possibilities have a
much less powerful claim that refusal impinges on them to
an impermissible degree.” (Kent Greenawalt, Objections in
Conscience to Medical Procedures: Does Religion Make a
Difference? 2006 U. Ill. L. Rev. 799, 823-24.)
What does failure to protect rights of conscience of health
care providers (doctors, nurses, pharmacists, etc.) do for
the substructure of our constitutional freedoms and
government?
Does requiring individuals (alone or collectively) to violate
their conscience and do / facilitate acts that they believe to
be evil strengthen or weaken the foundation of liberty in
our Republic? Do we have enough police otherwise?
Would the Enron, Arthur-Anderson, Bernie Madoff
scandals and subprime lending mortgage crisis have been
avoided if people had been taught to follow conscience
rather than focus on regulations (and their avoidance)?
Elie Wiesel, Night
• “How was it possible that men, women, and
children were being burned and that the
world kept silent. . . .”
(Night, p. 32, 2006 ed.) (retranslation)
Elie Wiesel, Nobel Speech 1986
• “I swore never to be silent . . . . We must take
sides. Neutrality helps the oppressor, never
the victim. Silence encourages the tormentor
. . . .”
Id. at 117, 118.
Gordon B. Hinckley, Standing for
Something (2000)
What we desperately need today on all fronts . . . are leaders, men
and women who are willing to stand for something. We need
people . . . who are willing to stand up for decency, truth, integrity,
morality, and law and order . . . even when it is unpopular to do so –
perhaps especially when it is unpopular to do so.
....
. . . Never before, at least not in our generation, have the forces of
evil been so blatant, so brazen, so aggressive as they are at the
present time. . . .
....
We are involved in an intense battle. It is a battle between right and
wrong, . . . . [W]e desperately need men and women who, in their
individual spheres of influence, will stand for truth in a world of
sophistry. . . . We need moral men and women, people who stand
on principle, to be involved in the political process. . . .
Thank you
Practical Examples of Balancing Rights of Conscience
and Accommodation of Access:
American Pharmaceutical Association 1998 policy protecting
rights of conscience of pharmacists and accommodation of
access by “a system to ensure patient access to legally
prescribed therapy without compromising the pharamcists
right of conscientious refusal,” such as toll-free telephone
access to information about pharmacies and pharmacists who
will fill controversial prescriptions that would violate the rights
of conscience of other pharmacists.
Washington state successfully implemented that program.
Church Amendment of 1973
Expansions Danforth and Weldon amendments
State conscience protection provisions (all states but AL, NH, VT)
IV. Conclusion: We Can Do Both
Tensions between religious values and professional obligations can be
reconciled by respecting both interests.
It takes more time, effort and creativity.
That irritates those ideologues whose goal is maximum ease and
efficiency of delivery of controversial health services.
That also may be one reason why profit-driven or cost-conscious
health care institutions and organizations are impatient with
efforts to protect rights of conscience.
While protecting rights of conscience and of access to services may
sometimes requires some cost or sacrifice on both sides, in the
long run, it takes less time and expense than the litigation, deep
resentment, and backlash that denial of the first American right –
the rights of religious conscience -- inevitably produce.