Supporters of a woman’s right to make her own health decisions were handed a delightful surprise this week when a grand jury cleared a Houston Planned Parenthood clinic of allegations that it had illegally sold fetal tissue—and instead indicted the videographers who had purported to document the sale.
“We were called upon to investigate allegations of criminal conduct by Planned Parenthood Gulf Coast,” said Harris County District Attorney Devon Anderson in a written statement. “As I stated at the outset of this investigation, we must go where the evidence leads us.”
Social conservatives quickly denounced Anderson, but she reminded critics that she’s solidly “pro-life,” adding, "The inconvenient truth of a criminal investigation is that it doesn't always lead where you want to go."
The other inconvenient truth for social conservatives is that the case proved a point: When people actually discover the truth about what anti-abortion activists are doing, they’re appalled. Appalled enough to turn the tables entirely in the other direction.
As Philip Hilder, a former federal prosecutor, rather matter-of-factly told NPR:
They went into, the grand jury, initially looking at Planned Parenthood but I think after the grand jury's investigation, they decided that there were no charges to be brought against Planned Parenthood and rather the two videographers should be charged with second-degree felonies involving tampering with the government record.
This real-world example further demonstrates the findings of a poll commissioned by the National Institute for Reproductive Health (NIRH) that found people balk when they learn how badly state laws have chipped away at women’s access to abortion.
When informed, a majority of voters say the restrictions are going in the wrong direction. […] Close to two-thirds (63 percent) say the restrictions trend is going in the wrong direction, and 35 percent say the trend is going in the right direction
The survey also found that a little more than half of voters had no idea of the trend in state laws toward depriving women of access to safe and legal abortions. In fact, since 2010, state lawmakers have passed 318 laws making it more difficult to get abortions.
Furthermore, once a woman has decided to have an abortion, strong majorities say they would want it to be: 1) informed by medically accurate information, (94 percent); 2) safe, (93 percent); 3) legal, (76 percent); 4) affordable, (72 percent); and 5) available in her community, (72 percent). Yet more than 1,000 laws have been passed since the 1973 Roe v. Wade decision that run in the exact opposite direction.
All this got me thinking about a recent article by Kathleen J. Frydl in Washington Monthly that re-examined one of the most routinely cited reasons that religious institutions—even those that are publicly funded—don’t have to adhere to standard medical protocols regarding reproductive health: The “conscience clause.” Along the lines of being outraged by the grim reality of basic reproductive rights today, here’s how the article opens:
In December 2010, when her water broke only eighteen weeks into her pregnancy, Tamesha Means rushed to Mercy Health Partners, her closest hospital and the only provider within a half-hour drive of her home in Muskegon, Michigan. Staff at Mercy Health did not inform Means of the risks that continuing the pregnancy posed to her health, nor did they notify her of any termination options for a non-viable fetus. Instead, they sent her home. Suffering through agonizing pains throughout the night, Means began bleeding. When she returned to Mercy Health the next day, the staff sent her home once again. By this time Means was running a fever and plainly suffering from a severe infection; she once again made the trip to the hospital. As Mercy prepared the paperwork to dismiss her yet again, Tamesha Means began to deliver. Only then did Mercy Health admit her for treatment.
In June of 2015, in response to an ACLU lawsuit filed on Means’s behalf, a federal district judge in Michigan ruled that Means was not a patient with rights in need of treatment from a hospital; she was a non-consenting party compelled to observe the teachings of a theological institution. Mercy Health, a Catholic-affiliated hospital, dispensed care according to the Ethical and Religious Directives for Catholic Health Care Services, and according to the judge, allowing the lawsuit to go forward would require the court to decide whether those directives compromised Means’s health care—a decision that would “impermissibly intrude upon ecclesiastical matters.”
It’s maddening, frankly, to learn that a woman wasn’t provided a basic standard of care simply because the publicly funded hospital she went to—also the only one she could easily access—was more bound by the Catholic Church’s “Ethical and Religious Directives” than providing actual medical care.
But what’s most interesting about Frydl’s extensively researched article is that it does something that’s actually quite rare, especially as it relates to politics: it explores an argument that’s been routinely accepted as unassailable and not only finds its vulnerabilities, but suggests it should in fact serve as the starting point for reframing the conversation.
As Frydl notes, “The effort to carve out exemptions in the name of conscience amounts to one of the most successful conservative tactics deployed against individual rights claims in the modern era.”
But this was the real news to me:
The prerogatives made available by the conscience clause were established by legislation, not some landmark court decision on religious freedom. Amid recent discussion of the rights of conscience, one could be forgiven for assuming otherwise, especially in light of the intentional ambiguity sustained by supporters of a right of refusal who invoke constitutional principles of religious freedom in conversation, and sometimes rely upon them in court.
Legislation? So the conscience clause at the heart of so many of these recent legal challenges surrounding contraception find their basis, as least partly, in an act of Congress? Yes, in fact, one that was enacted in 1973 as an amendment to an appropriations bill.
Frydl provides a long history and legal analysis that is quite honestly beyond my pay grade. But this point came through loud and clear: The conscience clause has taken on a certain mythical quality that has made it ripe for mission creep. Everyone wants to claim it applies to them, including for-profit operations like Hobby Lobby, which won an exemption to providing contraception coverage, and single actors like Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples.
But instead of assuming that it’s untouchable and immediately looking past it, perhaps we should take aim directly at the root of the problem.
Today, all three branches of government approach the right of refusal as if the religious autonomy of a nonprofit corporation were a constitutional principle beyond dispute. But the trauma endured by Tamesha Means illustrates the dangerous limits of its underlying premise, and suggests that, instead of making concessions, progressives should be building a case for limiting or even eliminating an institutional conscience clause for anything other than a strictly religious corporation.