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USA: Abortion Rights vs religious rights

Wednesday 30 September 2020, by siawi3


Abortion rights supporters demonstrate during the “Stop Abortion Bans Day of Action” rally at the Supreme Court on Capitol Hill in Washington, D.C. on May 21, 2019. Abortion supporters rallied across the United States today to protest new restrictions on abortion passed by Republican-dominated legislatures in several states. Photo by Kevin Dietsch/UPI

2020 Issue 1 Abortion

When Roe v. Wade Meant More Than Just Abortion Rights

By Mary Ziegler

Posted Sep 15, 2020

AMERICANS WILL MARK THE 45th anniversary of Roe v. Wade with celebration dinners, candlelight vigils and major protests. Despite the deep cultural divide Roe exposes, these events will have one thing in common: They will be almost exclusively about abortion. That’s because Americans have learned to see Roe only through a narrow lens, missing that the decision, and the right to privacy it conveyed, once stood for something much more expansive.

The real story of Roe‘s legacy is only partly about abortion. The decision also belongs to a longer history of what we mean when we talk about privacy and how that notion has (and sometimes has not) shaped our legal rights in areas well beyond this single issue.

The introduction of this seemingly broad right sparked an ongoing debate among Americans across the ideological spectrum: What does the right to privacy constitute — to whom does it belong and what does it protect?

After the Supreme Court issued its decision, social movements working on issues unrelated to abortion immediately moved to wield Roe as a weapon. It may seem puzzling that people wanted to tie a cause to Roe. After all, abortion was extraordinarily controversial. And almost immediately, most constitutional scholars admitted that Roe was an odd (and perhaps lousy) opinion.

But poorly constructed or not, Roe recognized a right to privacy that seemed much broader than anything the judiciary had identified before — broad and expansive enough to trump crucial state interests in protecting life and encompass a woman’s right, with her physician, to terminate a pregnancy. The Court’s opinion did not go far enough for many activists, but this right to privacy seemed to touch on ideas about control over one’s body, one’s decisions and one’s life.

In the 1970s, activists working with the American Civil Liberties Union (ACLU) and what was then called the National Gay Task Force argued that Roehad recognized a right to choose that covered not just reproduction but also sexuality. The ACLU’s Sexual Privacy Project pointed to Roe in defending gay and lesbian people, women living with boyfriends, adult film stars, sex workers and people arrested for violating laws against cross-dressing.

But sexuality wasn’t the only lens through which people understood the decision. Advocates for the mentally ill envisioned Roe and the right to choose as bolstering their own cause. At a time when state institutions were closing at a record rate, former patients suggested the right to privacy protected the freedom of thought. Roe, as these activists saw it, protected people from forced drugging or electroshock therapy.

Because of the right to privacy at the heart of the decision, politicians and activists with different ideological views also used Roe in the fight for data privacy, consumer rights and alternative medicine. Not long after President Richard Nixon declared a war on cancer, patients and far-right activists alike pointed to Roe in contending that a person had the right to choose the course of his or her own medical treatment. The medical establishment, by contrast, used Roe to push back against unproven remedies, suggesting the Court had really recognized doctors’ rights to practice medicine.

In short, in the 1970s, a variety of movements explored the untapped potential of the right to privacy. Activists argued that privacy involved choice, control and self-determination, not just freedom from the government. These ideas went well beyond anything in the original Roe decision.

So what happened? Why is everyone marking Roe’s 45th anniversary talking about abortion and nothing else?

In part, it’s because the coalitions working to redefine the right to privacy often collapsed. Feminists and civil libertarians sometimes clashed about what a right to choose would mean in the context of sex, especially when it came to the line between coercion and consent. Those seeking more control over personal data disagreed about when the government could justify the gathering or sharing of sensitive information.

Moreover, as time progressed, the abortion debate started to catch up with people who tried to turn Roe into something more. Before the 1980s, it was easy to find people with various positions on abortion in both major political parties. But then Ronald Reagan made the Republican Party into what backers called the party of life, and feminists gained more influence in Democratic circles. Increasingly, Roe (and its right to privacy) appealed only to self-identified progressives.

The narrowed understanding of Roe was also the product of a particular political strategy. Anti-abortion rights advocates and Republicans understood the importance of public opinion. If Roe was a symbol of a broad right to privacy, liked and enjoyed by many Americans, abortion foes would have a harder time convincing them abortion should be banned or restricted.

These abortion opponents shrewdly recognized that academics had long questioned the reasoning of the Roe decision and sensed an opening. If they could transform Roe from a decision associated with a broad, popular right into one associated with inappropriate judicial activism, it would be much easier to get it overturned.

Outside of the ivory tower, anxieties about Roe as an example of judicial activism had rarely resonated in the 1970s, but anti-abortion advocates set out to change that. By the end of the 1980s, abortion foes and Republican politicians routinely pointed to Roe as a symbol of the problems with the judiciary. Republicans like Reagan saw these attacks as a way to gain support from social conservatives, and once anti-abortion activists accepted that a constitutional amendment protecting fetal rights was unlikely, they saw attacks on the judiciary as the best way to restrict abortion.

This effort at least partly paid off. In 2018, when anyone mentions Roe v. Wade, that person is almost certainly talking about abortion or the Supreme Court. The right to privacy and everything it could mean is nowhere to be seen.

Roe’s legacy reminds us that the Supreme Court often does not have the final word on what its decisions mean. People who invoked Roe did not feel limited by what the justices wrote in 1973. Some of these reinterpretations have had a longer cultural life than the Court’s original opinion. The same will hold true for the Court’s next blockbuster decision.

The meaning of the right to privacy is likewise up for grabs. Americans debate how companies like Google and Facebook use our data and how businesses and the government can prevent data breaches like the one at Equifax. Choice and control in intimate life are on the front page again as the Supreme Court considers how to balance the rights of gay and lesbian people against the objections of religious believers who refuse to serve same-sex couples.

Roe’s legacy also tells us the right to privacy could have been both broader and different from what we now know. Not long after the Court announced its decision, Americans talking about privacy asked for financial support from the government, not just liberty from the state. Others demanding privacy talked not only about what went on behind closed doors, but also about the tolerance and respect accorded to people’s relationships in public. The story of Roe is a reminder of how we have rethought the right to privacy before—and that we could do so again.

by MARY ZIEGLER Stearns Weaver Miller professor at Florida State University College of Law and author of Abortion and the Law in America, Roe v. Wade to the Present



2020 Issue 1 Healthcare

The Harm of Bishops’ Restrictions on Healthcare – Part 1

Is There a Bishop in the House?
(Click here for part 2: Living Our Values)

By Lori Freedman, PhD / / Posted Sep 15, 2020

cross caduceusAs debates intensify in the public policy arena over the broader issues of religious liberty and reproductive
freedom, nowhere do the issues more personally collide than in Catholic healthcare facilities.
Conscience asked USCF professors LORI FREEDMAN and JODY STEINAUER to explore what happens when institutions impose a false notion of institutional conscience upon patients’ and providers’ agency, and how a community can protect the rights of those whose conscience should matter most in healthcare decision making.

Lori Freedman, PhD Sociologist and Greenwall Faculty Scholar at UCSF.

Lori Freedman, PhD
Sociologist and Greenwall Faculty Scholar at UCSF.

Usually when we think about religious rights and conscience in healthcare, it brings to mind the image of a deeply religious healthcare worker—a person who does not want to deliver certain care they find troubling morally and ethically. However, in the US context, consciences can belong to institutions too. The US has many religious hospitals that restrict the care allowed within them, and there is little legal recourse because of the conscience rights conferred on them by the US government. This often results in discrimination against unsuspecting patients or requires providers to give substandard care. I am a medical sociologist and bioethicist, and I have been conducting research about this for many years. What that research has revealed has concerning implications for patient autonomy and the practice of medicine.

Shortly after the Supreme Court legalized abortion in Roe v. Wade, Congress enacted a series of federal laws authorizing both individual and institutional provider refusals based on religious belief. The first of what became known as conscience clauses applied to abortion and sterilization. From there, the range of services and providers protected by refusal laws expanded. The laws empower institutions to mandate that their employees refuse certain care while working in their facilities. Essentially, the institutions’ so called conscience overrides that of the individuals inside them.

Catholic health institutions occupy a sizable sector of American healthcare.1 One out of every six hospital beds in the US is in a Catholic hospital; in some states like Wisconsin, Washington and Alaska, more than 40 percent of hospital beds reside in Catholic facilities. Nationally, the Catholic sector of the health system has experienced continuous growth since the 1990s, even as most other sectors shrink. Part of that growth has come from mergers or partnerships with secular institutions, further eroding the options for people who need to access the full range of reproductive health services.

With modernization and competition, Catholic hospitals have come to look and feel like most other US hospitals. What makes them unique is that Catholic hospitals must follow the United States Conference of Catholic Bishops’ (USCCB) religious policies for care, called the Ethical and Religious Directives for Catholic Health Care Services (ERDs). These policies restrict a broad range of care, including contraception/sterilization, fertility treatment, miscarriage management, gender affirming care and, of course, abortion. The ERDs don’t sit well with many doctors. A national survey found that 52 percent of obstetrician-gynecologists who work in Catholic hospitals report conflict with their hospital’s religious policies for care.2

Catholic hospitals and the people within them have changed. One hundred years ago, it was likely that the patients and employees of Catholic hospitals were largely Catholic and wanted care delivered according to Catholic doctrine. Today, Catholic hospitals both employ and serve diverse populations. Research shows that patients, Catholic or not, rarely choose a hospital based upon its religion and instead prioritize factors such as quality, insurance and geography. The ERDs do not reflect the needs and preferences of Catholic women, never mind the rest of the population they serve. Even though nearly all women have used contraception, and only 8 percent of Catholic women3 feel contraception is morally wrong, the directives mandate that Catholic healthcare institutions “may not promote or condone contraceptive practices.” And while a third of Catholic women4 rely on sterilization to limit family size, the directives strictly prohibit it.

Today, clergy have little to do with the day-to-day running of a hospital, and marketing has sought to de-Catholicize the image of the hospitals. This can make it especially hard for patients to avoid the restrictions,5 they don’t necessarily know their own hospital is Catholic6 or what that means for the care they’ll receive.7 It is also often assumed—wrongly—that Catholic hospitals treat the poor more than other hospitals, and thus hold a certain moral high ground. However, nationally, they provide only an average amount of Medicaid and charity care, and they do so using public funds and insurance dollars like other hospitals, not money from the church.8

Despite these shifts in the overall transparency, identity and charity of Catholic hospitals, the religion’s hierarchy remains all-powerful over care. Restrictions run counter to best practices in obstetrics and gynecology and family planning and transgender care, and can result in discriminatory and substandard care. While research has repeatedly demonstrated that evidence-based family planning methods are both widely embraced by women and critical to their family’s health and well-being, the USCCB’s directives prohibit health professionals from providing them in Catholic-affilated health facilities.

Medical professional associations agree that a new mother’s contraceptive needs are ideally addressed in the hospital after delivery, before returning home to take care of a newborn child. This is a critical window of opportunity, especially if she desires a sterilization procedure.9 In one study, half of women denied a wanted sterilization experienced an unintended pregnancy within one year. Therefore, a patient giving birth in a Catholic hospital can be at higher risk of subsequent pregnancies she did not want. If the new mother must have a separate sterilization procedure elsewhere, later, she has additional risks from anesthesia and surgery and potential financial costs.10 This compounded risk is especially pronounced if she was already having a C-section, and is sewn up without the desired tubal-ligation. A Catholic hospital ob-gyn once told me in an interview that she felt she was in an ethical bind—while she might be able to direct some patients to deliver elsewhere if they want access to sterilization, it doesn’t always work. Some may end up delivering in her Catholic hospital, needing what she can’t provide. “And I as a doctor, every time I’m on call, I’m playing Russian roulette, because I feel that I can’t look into a patient’s abdomen and—as far as I’m concerned—commit malpractice. I mean, to close someone up and say, ‘You need another operation,’ is just malpractice.”11

Not being allowed contraception and sterilization can be extraordinarily confusing to patients who have a deep appreciation of the social disapproval of abortion, but cannot understand why their healthcare provider would restrict the means of preventing it. For example, one patient I interviewed delivered premature twins at a Catholic hospital and was unable to receive the sterilization she desired. Worse, she was also denied postpartum contraception both in the hospital and her physician’s clinic, which was associated with the hospital. When asked how she felt about this, she said, “I was not comfortable with that … I wanted to prevent getting pregnant again and they’re not … providing me with the resources, like in this case birth control. I felt like I was practically like being obligated to not take birth control.”

Women having miscarriages who seek care at Catholic hospitals may also face restricted care. This arises because abortions are completely prohibited by the ERDs. Doctors report they must test for a fetal heartbeat, even when miscarriage is clearly inevitable, and if it is detectable, they must wait for signs of infection before treating. This is not standard practice in nonreligious settings, where ob-gyn care is more patient-centered, and miscarriage management is offered to reduce pain and risk to a woman’s life and health. Such waiting can cause distress for both the patient and the physician. One Catholic hospital ob-gyn I interviewed explained, “We often tell patients that we can’t do anything in the hospital but watch you get infected, and we often ask them if they would like to be transferred to a hospital that would go ahead and get them delivered before they get infected … it’s just very difficult for them; they’re already in a hard place … we actually have the patients discharge themselves … drive themselves and then admit themselves to the next institution.”12

Another ob-gyn who worked at a Catholic facility described a particularly distressing case of a woman with a twin pregnancy that had gone wrong. There was one healthy appearing pregnancy and the other was a typical mole. A molar pregnancy is not one that can survive, and the tissue can become cancerous, potentially threatening the woman’s life. The doctor said, “You can’t do anything while she’s there; you can’t help her end the pregnancy in a hospital setting that’s safer.” When the doctor asked the Catholic ethics committee for permission to terminate the molar pregnancy because of her medical condition, they refused.

Physicians respond in various ways: transferring patients out, falsifying charts or misdiagnosing to work around restrictions or delaying and denying care. Recent legal cases against Catholic hospitals have included stories like those I hear in my research. One involved the hospital’s refusal of a doctor’s request to provide tubal ligation13 during scheduled cesarean surgery. Three currently involve refusal of gender confirming surgery because the USCCB does not recognize gender dysphoria as a legitimate condition meriting surgery. An older case involved a patient with preterm premature rupture of membrane and infection who was twice sent home from an emergency room without being told that she was undergoing a miscarriage, or that continuing the pregnancy was dangerous.

Institutional conscience rights tie the hands of doctors and can subject patients to substandard care and logistical, financial or dignitary harm. Unfortunately, the health systems are not incentivized to be more transparent to help patients avoid these harms. While institutional conscience laws allow religious hospitals to restrict legal, safe and common reproductive healthcare, it is not necessarily ethical and medically sound to do so, and in some cases, these religious policies mandate discrimination and substandard medicine.


1 Uttley L, Khaikin C, and Hasbrouck P. “Growth of Catholic Hospitals and Health Systems: 2016 Update of the Miscarriage of Medicine Report.” MergerWatch. 2016.
2 Stulberg DB, Dude AM, Dahlquist I, Curlin FA. “Obstetrician-gynecologists, Religious Institutions, and Conflicts Regarding Patient-care Ppolicies.” Am J Obstet Gynecol. 2012;207(1):73 e1–5.
3 “Where the Public Stands on Religious Liverty vs. Nondiscrimination.” Pew Research Center. Sept. 28, 2016.
4 Jones, Rachel K., and Dreweke, Joerg. “Countering Conventional Wisdom: New Evidence on Religion and Contraceptive Use”. Guttmacher Institute. April 2011.
5 Takahashi J, Cher A, Sheeder J, Teal S, and Guiahi M. “Disclosure of Religious Identity and Health Care Practices on Catholic Hospital Websites.” Jama. 2019;321(11):1103–4.
6 Wascher JM, Hebert LE, Freedman LR, and Stulberg DB. “Do Women Know Whether Their Hospital Is Catholic? Results from a National Survey.” Contraception. 2018;98(6):498–503.
7 Stulberg DB, Guiahi M, Hebert LE, and Freedman LR. “Women’s Expectation of Receiving Reproductive Health Care at Catholic and Non?Catholic Hospitals.” Perspect Sex Reprod Health. 2019;51(3):135–42.
8 Uttley et al. “Growth of Catholic Hospitals.”
9 “Access to Post Partum Sterilization.” Committee Opinion No. 530. American College of Obstetricians and Gynecologists. Obstet Gynecol 2012; 120:212-15.
10 Richardson MG, Hall SJ, and Zuckerwise LC. “Postpartum Tubal Sterilization: Making the Case for Urgency.” Anesthesia & Analgesia. 2018;126(4):1225–31.
11 Stulberg DB, Hoffman Y, Dahlquist IH, and Freedman LR. “Tubal Ligation in Catholic Hospitals: A Qualitative Study of Ob-gyns’ Experiences.” Contraception. 2014;90(4):422-8.
12 Freedman LR, Stulberg DB. “Conflicts in Care for Obstetric Complications in Catholic Hospitals.” AJOB Primary Research. 2013;4(4):1–10.
13 “Judge Rules Catholic Hospital Can Deny Tubal Ligation to Redding Woman.” KQED. January 14, 2016.