Can Jiminy Cricket be silenced? Congressional spending powers, federalism, and the federal refusal clause.

AuthorLestino, Leo Marvin

"Now remember, Pinocchio, be a good boy. And always let your conscience be your guide." (1)


    The concept of a universal right of conscience forms an important aspect of the liberties upheld and guaranteed within the American constitutional order. The framers frequently emphasized the significance of protecting individual scruples in much of their work and recognized the immutability of the right to make moral choices. They firmly held that a person should not be compelled to act contrary to the dictates of his conscience, and any attempt to coerce individuals to go against their moral affirmations should be repudiated. (2) Inevitably, protecting this right is one of the mandates that the framers unreservedly and unequivocally placed on the shoulders of government. It is a necessary and fundamental liberty that must be preserved and guarded from unwarranted intrusion.

    Abortion is a relevant area of social concern where active objection based on morality and conscience is of particular interest. The declaration of a woman's "right" to terminate her pregnancy as a matter of privacy in Roe v. Wade (3) has fueled significant moral, political and legal discussion in the past thirty years. The debate has become a fertile ground for the progress of discourse on rights of conscience, particularly the role of individual moral objections in the development of pressing social issues. It becomes even more contentious when private health care entities, consisting of organizations and individuals alike, are involved. Although the Supreme Court has ruled that women have a constitutional right to abort an unborn child, it has refrained from declaring that women are entitled by law to receive abortion-related services. The Court has never held that health care entities are required to perform medical procedures without regard to any existing moral and religious reservations they may have to the contrary. Since the Court has declared that it places no affirmative duty on government agencies to facilitate abortions, it is only reasonable that the rights of conscience of private health care providers are not superseded through the enforcement of a similar duty. (4)

    The enactment of refusal clauses is reflective of Congressional efforts to protect the rights of conscience of organizations and individuals involved in the health care industry in the wake of Roe v. Wade. Refusal clauses (or conscience clauses) are statutory tools that allow Congress to deny federal funding for public agencies that discriminate against health care entities that refuse to participate in certain medical practices, procedures or programs on moral or religious grounds. (5) Most states have enacted some type of refusal clause that, at the very least, protects some health care providers in limited circumstances. (6) There is, however, there is a great disparity between the different states as to the scope and duration of each respective refusal clause. (7)

    In recent years, Congress has focused its efforts on federal budget appropriations in enacting abortion-related refusal clauses. Most funding bills assign the task of providing monetary grants for health care entities to local public health agencies. This procedural mechanism can be an effective Congressional tool to curtail discriminatory practices relating to rights of conscience. Congress can prevent public agencies from discriminating against health care entities that decide not to provide for abortion-related services on moral grounds by attaching conditions to federal funding. Such conditions preclude agencies from receiving federal funding if they engage in the specified discriminatory conduct.

    The latest of these Congressional efforts is the Weldon Amendment, a federal refusal clause attached to the Consolidated Appropriations Act of 2005. (8) Congress grants federal monies for health-related programs administered by private entities through the authority given by the Public Health Service Act under which the 2005 appropriations bill fell. (9) Attached to this particular budget legislation, Congress designed the Weldon Amendment to prevent public agencies from discriminating against and withholding funding from health care entities because of their moral objection to providing abortion services to patients. The refusal clause in the Weldon Amendment strengthened existing legislation that protected rights of conscience and broadened the scope of who would be sheltered from discrimination by the state.

    Passing congressional scrutiny was not an easy task. The Weldon Amendment was vehemently challenged in both houses from its inception. (10) Even though the federal refusal clause was eventually enacted, courts of law continued to draw fresh battle lines. Different states challenged, through lawsuits, the constitutionality of the legislation on several grounds. Its ratification was condemned as an impermissible exercise of congressional spending powers that overreaches what the spending clause of the Constitution grants. (11) Some critics characterized the Weldon Amendment as an egregious trespass on the autonomy of states to regulate their own health care industries, claimed it was contrary to the basic principles of federalism, (12) and decried it as a violation of the states' Tenth Amendment rights. (13) Furthermore, opponents challenged the amendment as an undue burden on a woman's right to abortion and a violation of substantive due process rights. (14)

    This article focuses on the spending clause and Tenth Amendment state autonomy challenges against the Weldon Amendment as a federal refusal clause. It will show that this clause was a valid exercise of Congressional spending powers and is consistent with the principles of state sovereignty and federalism. Part II of this article presents the founders' views regarding rights of conscience and outlines the history of legislative efforts to preserve the fights of health care entities to object to providing abortion-related services on moral or religious grounds, even after Roe v. Wade. Part III illustrates, in further detail, the contents of the federal refusal clause and describes the constitutional challenges that opponents have brought against its validity. Part IV examines how the enactment of the Weldon Amendment is well within the powers of Congress contemplated in the Spending Clause of the Constitution and passes the four-prong test of legitimacy set forth in South Dakota v. Dole. (15) Part V focuses on the implications of the federal refusal clause on the principles of federalism, states' autonomy and the reservation of fights to the states by the Tenth Amendment. Finally, Part VI concludes that the enactment of the federal refusal clause was constitutional and also addresses the limitations of the protections the Weldon Amendment affords because of its narrow scope and limited duration of the appropriation.

    This article proposes the creation of a permanent federal refusal clause that contains broader provisions which recognize and preserve rights of conscience and can be attached to all health-related federal funding. The legislation of a permanent federal refusal clause is necessary to secure the rights of conscience of health care providers against discriminatory action in a more comprehensive and lasting manner than the temporary protections attached to limited Congressional appropriations.


    1. Recognizing Rights of Conscience

      The historical predecessor and basis for the enactment of the First Amendment was legislation establishing protection for rights of conscience. (16) The ability to follow the "dictates of [one's] conscience" was a guaranteed liberty in colonial America prior to the drafting of the Declaration of Independence and the Constitution. Conscientious objection was not only protected but also vigorously exercised by the founders. For example, taxes that forced individuals to provide monetary support for government actions they had moral objections to were challenged on the basis of rights of conscience. Thomas Jefferson campaigned to repeal those tax laws and tried to prevent any future attempts to force men to financially support governmental activities that went against their moral affirmations. (17) James Madison eventually allowed the enactment of Jefferson's proposed freedom of conscience bill, which may be considered as one of the first conscience clauses passed in the country. (18) Many of the founders expressed the same sentiment that it is imperative for the government to guarantee that the rights of conscience of its citizens are protected. (19)

      In the twentieth century, legislation protecting conscientious objection to military service became relevant. The Court declared in United States v. Seeger that exemption from military service only required a sincere conviction based on religious belief. (20) There is still current legislation in place that permanently protects the rights of conscience of individuals who have moral reservations to military service. (21)

    2. From Church to Weldon: Conscience Protection Abortion Objectors

      Initial Congressional efforts to protect conscience rights relating to abortion were spurred by an incident that occurred in November, 1972. In Taylor v. St. Vincent's Hospital, a court ordered a Catholic hospital in Montana to stop denying the use of its facilities to a doctor who sought to perform sterilization procedures regardless of the hospital's obvious religious objections. (22) The court classified the hospital as an agent of the state for the purposes of several civil tights statutes because of its receipt of public funds and was therefore subject to sanctions for depriving individuals of their tights to obtain certain medical procedures. (23) A few months after Roe and in direct response to the Taylor ruling, Congress passed the first federal refusal clause proposed by Democratic Senator Frank...

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