The abortion debate thirty years later: from choice to coercion.

• Author: Kramlich, Maureen

For more than thirty years, supporters of legalized abortion have publicly advocated for the practice as a matter of "choice." (1) Initially, these advocates argued for a "right to choose" to be free from governmental interference in the decision to abort. In 1971, Sarah Weddington, who represented Jane Roe (2) in the case of Roe v. Wade, (3) argued before the United States Supreme Court for a "liberty from being forced to continue the unwanted pregnancy" (4) She argued before the Court for a negative right, for a restraint on governmental interference in the abortion decision, not for a positive right of access or governmental entitlement to abortion. But today, advocates of legalized abortion argue for governmental facilitation of abortion and are attempting to shift the debate in the public forum from "choice" to "access," a state of affairs that implies "coercion" of those health care providers who disagree.

Academic literature (5) attempting to recast abortion jurisprudence has influenced this public debate. These legal arguments propose reshaping the law's treatment of abortion rights (6) by shifting it from a negative liberty to a positive one, thereby requiring the government to provide access. Governmentally secured access, according to this view, (7) includes forcing unwilling health care providers, both institutional and individual, (8) to participate in abortions. (9)

Pro-life supporters now find themselves seeking to protect in law not only the life of unborn children and the authentic freedom and dignity of women, (10) but also their right to not participate in what they regard as a monumental injustice. In addition to working proactively for legal protection for unborn children, pro-life advocates are also working to defend the legal tradition, now at least three-decades old, (11) of protection of conscience rights--more specifically, of protection from forced involvement in abortion.

An ideology that calls for abortion on demand, at any stage of pregnancy, (12) and, if a woman cannot afford one, paid for by the government, (13) is largely driving the new public debate about whether all health care providers, including Catholic providers, should be forced to participate in abortions.

Another factor fuelling this debate is the very nature of the practice of abortion. Abortions, by and large, are performed in freestanding, specialized clinics located in urban areas. According to the most recent statistics available from the Alan Guttmacher Institute ("AGI"), a research organization affiliated with the Planned Parenthood Federation of America, (14) seventy-one percent of all abortions were provided by abortion-dedicated clinics, (15) and ninety-four percent of all abortion providers are located in urban areas. (16) Only five percent of abortions were provided by hospitals, and only 603 hospitals provided them. (17) This number represents 11.6 percent of all hospitals nationwide. (18)

The practice of abortion is also increasingly being consolidated into larger facilities. The AGI confirms the trend: "Between 1996 and 2000, the number of providers declined in each size category except the largest (5,000 or more); thus, abortions were increasingly concentrated among a small number of very large providers." (19)

Market pressures account for the practice of abortion by specialized, urban and large case-load providers. To generate a profit margin, abortion clinics have almost exclusively located in urban areas where there is a large population base. The New York Times, for example, interviewed abortion providers about the nature of the business and quoted one abortion provider, Dr. William Ramos, as saying, "Abortion clinics are no different from other specialty services.... In the entire state of Nevada, there is only one Lexus dealer and only one Acura dealer." (20) The article concludes, "Clinic owners say they have little choice but to cluster in cities--that is the only way they can find enough patients." (21)

Unwilling to venture out into unprofitable rural areas to perform abortions, the abortion lobby is seeking to mandate their availability across the country. The American Civil Liberties Union ("ACLU") has recently developed an argument that effectively calls for the abolition of laws protecting the rights of health care providers who decline involvement in abortion. (22) The ACLU positions the debate as an issue of what kinds of exemptions, if any, the state should make for health care providers who decline participation in abortion (and in other kinds of ethically controverted areas of reproductive health care). (23) Though the ACLU acknowledges there is no constitutional duty to provide abortion, it positions abortion as a standard of care from which an objecting provider must seek an exemption. (24) They then inquire into what circumstances, if any, exemptions (which the ACLU refers to as "refusals") are appropriate. (25) The circumstances under which the ACLU would allow an exemption are quite narrow because the criteria are narrow. (26) The ACLU developed a two-part test that sets out these criteria: first, whether a conscience clause would "impose burdens on people who do not share and should not bear the brunt of the objector's religious beliefs," (27) and second, whether the conscience clause protects "the religious practices of pervasively sectarian institutions or instead protects institutions operating in the public sphere." (28) As to the second component, the ACLU adds:

When, however, religiously affiliated organizations move into secular pursuits--such as providing medical care or social services to the public or running a business--they should no longer be insulated from secular laws. In the public world, they should play by public rules. The vast majority of health care institutions-including those with religious affiliations--serve the general public. They employ a diverse workforce. And they depend on government funds. (29) Under these standards, in fact, no hospital qualifies for conscience protection. The standards exclude any entity engaged in health care, something the ACLU considers a wholly secular project. This is confirmed in the report, which notes, "[a]mong health care institutions, Christian Science sanatoria may exemplify those that should qualify for a religious exemption." (30) The ACLU criteria also exclude any hospital that does not discriminate on the basis of faith in hiring and in patients served. (31) And finally, the ACLU would deny conscience protection to any hospital that received government funding to care for the poor through, for example, the Medicaid program. (32)

An argument similar to the ACLU's was made nearly thirty years earlier. (33) The general counsel for Planned Parenthood at the time, Harriet Pilpel, argued that private hospitals, because they receive government funding, are essentially public hospitals. (34) As "state actors," she said, they ought to provide abortions because any law that protects conscience rights of hospitals to decline involvement in abortion amounts to an unconstitutional governmental restriction of abortion:

[S]tatutes which purport to allow the receipt or use of government 'largesse' as a basis for the recipients of such funds to restrict constitutionally protected rights of other raises serious constitutional questions. This, of course, is the specific intent of the institutional conscience clauses and the related abortion-restricting provisions: they purport to permit public and private hospitals to refuse to perform abortions (and sterilizations) in direct defiance of the United States Supreme Court rulings prohibiting all but very limited governmental regulation of the abortion procedure in the first and second trimesters of pregnancy. (35) As a litigation strategy, Pilpel suggested that pro-abortion groups could bring federal civil rights lawsuits under 42 U.S.C. [section] 1983 to invalidate conscience protections and compel performance of abortions. (36)

One such [section] 1983 action was brought in 1973 to force a Catholic hospital to perform a sterilization procedure. In Taylor v. St. Vincent's Hospital, (37) the plaintiffs argued that St. Vincent's receipt of federal "Hill-Burton" funds, (38) federal money provided for hospital construction, transformed the hospital into a state actor. The court rejected the argument because while the case was pending, Congress eliminated the basis for the suit through enactment of the "Church Amendment." (39) The amendment, named for its sponsor, Senator Frank Church, declares that a hospital's receipt of federal funds in various health programs cannot be a basis for requiring them to participate in abortion and sterilization procedures, if they object because of moral or religious convictions.

But in a number of recent cases, pro-abortion groups have implemented new arguments treating health care providers as public actors and the abortion right as a positive right of access. In these cases, they have employed different legal strategies to impose their view on hospital policies and to intervene in hospital mergers, affiliations and other hospital transactions. The legal tools have included constitutional litigation, charitable trust law, and administrative-regulatory actions. (40)

1. VALLEY HOSPITAL ASSOCIATION, INC. V. MAT-SU COALITION FOR CHOICE (41)

   After Valley Hospital, a private, non-sectarian hospital in Alaska, elected a new operating board that passed a new abortion policy for the hospital, (42) the Mat-Su Coalition for Choice, represented by the Alaska ACLU, filed suit. On November 21, 1997, the Alaska Supreme Court ruled in the case and held that the hospital was required to allow elective abortions on its premises. Relying on the Alaska constitution's privacy clause, (43) the court reasoned that Alaska law protects abortion as a fundamental right. (44) According to the court, several factors transform the hospital into a "quasi-public" actor...