The Obama administration has decided to repeal a last-minute Bush administration regulation granting wide protections to health care workers from being fired or otherwise penalized for a religiously based unwillingness to perform acts they find morally objectionable. The decision is regrettable even though it is not very surprising. The administration says that the regulation’s language was too vague and sweeping, but that they are intent on crafting a new regulation that would not force anyone to perform an abortion.
We should approach regulations issued in the last month of an administration with prima facie suspicion. These are usually sops to important constituencies that are so generally unpopular, a president would not have dared to push them until he was headed out the door. This does not entirely get the Obama administration off the hook but if George W. Bush was so concerned about the conscience of health care workers, why didn’t he bring forth this regulation earlier, specifically when the state of Connecticut passed laws requiring Catholic hospitals to perform procedures they had previously found morally objectionable.
The Catholic bishops should study what happened in Connecticut. They will learn how not to proceed this time. The legislature was planning to pass a law requiring that all hospitals give Plan B, emergency contraception, to women who came to them and said they had been raped. This contraception sometimes functions as an abortifacient, so the Catholic hospitals declined to provide the medicine. For weeks and months, the Connecticut bishops took to the airwaves, they had pastoral letters read at all Masses, they threatened that they would close hospitals before they would provide Plan B. When the bill passed anyway, the bishops said that they could live with it because it only required a test that did not definitively determine whether or not an embryo had formed. Just so, there was sufficient doubt to permit the procedure.
I am all for casuistry, but the way the bishops of Connecticut handled the debate over Plan B was a disaster. You can’t rant about Armageddon for weeks and then say, "oh, never mind, we can live with this." This merely confuses your own flock. The place for casuistry is in the negotiations behind scenes, which the bishops should be having with the administration now.
What should come of all this? First of all, the bishops need to decide where they want to draw the line. Of course, a hospital has a right to expect certain things of its doctors: I do not suppose that anyone would want to hire a strict Christian Scientist as a surgeon anymore than I would hire a non-English speaker for the role of Hamlet in an English language production. There should, however, be a bright line around abortion of any kind, including the administration of drugs that might be abortifacients. If we can live with this provided no ovulation test takes place, then say that now and draw the line around surgical abortion procedures. This line also cuts the other way: Apart from abortion, a Catholic health care worker at a public hospital should expect to adminster contraception just as a Baptist waiter at a café should expect to deliver drinks.
But, that is not enough. The bishops should push for a second line that protects all Catholic hospitals from having to perform any procedure they find morally objectionable. This would, in effect, overturn the Connecticut law. Just as you would not go to a devout Christian Scientist for surgery, you shouldn’t go to a Catholic hospital for contraception.
Most importantly, the bishops and lay faithful need to confront the Obama administration not on Catholic grounds: He is not a Catholic. Our objection should be on liberal grounds. The coercion of conscience is arguably the greatest sin in liberalism. A woman’s right to an abortion is, under current jurisprudence, undeniable. But, does that right trump the freedom of conscience of the health care worker? Just as we do not force women to have an abortion (as in China), how can we, on liberal grounds, compel a health care worker to perform an act they find gravely sinful?
Belief in the liberty of conscience was the central contribution of the American hierarchy (prompted by Father John Courtney Murray, S.J.) to the discussions at the Second Vatican Council, resulting in the conciliar document Dignitatis Humanae, and the term has been much confused ever since. But, today, in this debate, we must be crystal clear: It is profoundly illiberal to force people to act according to beliefs they do not share. If that is not what liberalism is about, it isn’t about anything. And, if that is not what Obama is about, then he is no liberal. Our hearts and our hospitals should be off-limits to those who wish to compel us to participate in affronts to the dignity of human life.
