The Conscience Clause 

The right to refuse denies women the right to choose

The right to refuse denies women the right to choose EDITOR’S NOTE: The women and the stories they tell in this article are real. Their names have been changed, however, to protect their anonymity.

Annie stands at the end of her driveway on a surprisingly warm spring day. It’s 80 degrees in early April. Her suburban neighborhood is teeming with the sound of kids playing and laughing, and Annie’s three young children are a part of the din.

At 29, Annie knows she’s still young, but she admits to being “worn out from babies and breast-feeding.” Brushing a stray brown curl off of her forehead, she wipes away a tear with the same gesture.

As her youngest, a 13-month-old with fluffy blond hair and bright blue eyes, teeters near her mother’s shins, Annie sighs heavily, pats her stomach and then puts a hand over her eyes.

“I’m pregnant,” she says through tears, “again.”

Annie and her husband Dan have been married for nearly eight years. They are a quintessential middle-class, middle-America family. The three-bedroom suburban brick ranch, the requisite mini-van, the paychecks that don’t go as far as they need to and the on-going struggle to just keep their heads above water.

Today Annie feels as if she is drowning.

“I wasn’t on birth control while I was breast-feeding. We were trying to use condoms. I don’t know what happened.” She laughs a bit, and then adds, “Well, I know what happened.”

There are a few awkward moments of silence. There are more tears wiped away with the back of her hand. And there is a confession.

“My mom said, ‘Don’t worry, Annie. You’ll love this child, too.’ And I hope she’s right. I mean, I know she’s right. But I … I just don’t know if I can do this again.”

Annie stops and draws a deep breath before continuing. “The thing is … I don’t want to do it again. But I don’t have a choice.”

It is not necessarily a polite question to ask, but why didn’t Annie do something about it after her last baby? Why didn’t she have her tubes tied?

“I asked. “Hell, I begged,” she says as her laughter reveals more than a hint of bitterness. “But it’s a Catholic hospital. They wouldn’t do it, and our insurance doesn’t cover it if I go somewhere else.”

Has she considered an abortion?

“No. Yes. I mean no. Not really,” she stutters. She looks away and it’s clear she has more to say, but she doesn’t. She can’t.

Her oldest is now hanging upside down from a tree limb in the neighbor’s yard. Annie doesn’t have time to talk. She doesn’t have time to worry, or even cry. It’s almost 6 and she needs to gather the kids, check on the roast, get dinner on the table, clean up afterwards, oversee multiple homework assignments and baths, and all the other necessary tasks before tucking her daughters in for the night.

Dan will be home from work soon.

“He’s happy about the new baby. He says maybe this time it’ll be a boy.” Annie shrugs and picks up the toddler at her feet. “Please don’t tell him I was crying,” she says before going inside the house.

Religious exemptions

The Constitution of the United States guarantees a woman’s right to choose if or when to become a mother. But lawmakers at both the federal and state level continue to enact laws designed to make that choice more and more difficult and ultimately impossible.

In the 30 years since Roe v. Wade, states like Indiana have created numerous laws limiting women’s access to reproductive health services and medicines. In many cases, women are now finding themselves denied so many choices they are often left with none.

After the birth of their third daughter, Annie and Dan decided they didn’t want to have more children. Annie chose to have a tubal ligation, a sterilization procedure commonly known as a woman having her “tubes tied.”

What the couple didn’t know when they made that decision was that the “woman’s hospital” where Annie had received all of her medical care for more than 10 years had recently been acquired in a corporate merger and was now part of one of the country’s largest Catholic health care networks.

One of the most significant and least noticed changes in the current American health care market has been the unprecedented growth in size and influence of religious health systems — the fastest growing hospital systems in the country. And Catholic health systems, including five of the 10 largest health systems in the United States, now control 622 hospitals — the largest single group of non-profit hospitals.

What also goes unnoticed is how the expansion of religious hospitals and health systems has a significant impact on the types of services available.

Catholic health care systems are governed by Ethical and Religious Directives that promote prenatal care but prohibit almost all other reproductive health services because of religious doctrine. Contraceptive methods other than “natural family planning” are prohibited, and other banned services include treatments for infertility, sterilization and abortion — without exceptions for rape, incest or to save the life of the woman.

The growing influence of these systems and their supporters in government has resulted in a proliferation of legislative Refusal Clauses, also known as “religious exemptions” or “conscience clauses.” These statutory provisions allow people or entities to opt out of complying with laws and regulations due to religious or moral objections.

Unlike earlier Refusal Clauses which were limited to direct service providers and focused mostly on abortion services, more recent ones allow indirect providers such as HMOs, health insurance plans, pharmacists and entire health care systems the right to deny patients care on the basis of moral or religious beliefs. Additionally, the exemptions have broadened to include all types of reproductive health care services, including contraception, in vitro fertilization, sterilization and emergency contraception.

When Annie’s hospital became part of the state’s largest Catholic health care network, it could no longer offer tubal ligations, as part of its refusal to provide birth control, sterilization, abortion or abortifacients to its patients.

Not one of their doctors, insurance company, hospital or Dan’s employer ever notified Annie and her husband about the Refusal Clause or the resulting policy changes. If she wanted the surgery, the family would have to change their insurance plan, but the employer only allowed those types of changes once a year. Annie and Dan’s only other choice was to pay for the surgery out of pocket.

Looking back, the irony is not lost on Annie. “Funny isn’t it? Because we couldn’t afford to pay for a simple surgery that our insurance company didn’t bother to tell us was no longer available, now I’m having a baby we can’t really afford.”

A horrible situation

Last summer, Michelle made the difficult decision to end her 12-year marriage. She’d gone to marriage counseling. She’d talked on many occasions with her pastor. She had tried to make it work, but ultimately she decided the marriage had to end.

She knew it wasn’t going to be easy. She was nearly 40 and her job provided few opportunities for advancement. But she also knew that if she was careful, she could take care of herself and her children, and she knew they would eventually be better off on their own.

In early July, she moved out of the house with her sons and a few belongings. They stayed with her parents for a few weeks, but soon Michelle found an apartment near her office.

She didn’t know her husband had been served the divorce papers on the same day she was moving into her new place. It was Friday evening when the doorbell rang, and it caught her by surprise.

As soon as she saw her soon-to-be-ex-husband, Michelle knew he had been drinking. His drinking was one of the habits that she had decided she could no longer live with. It scared her, and she knew it was only a matter of time before he hurt her or one of their two young boys.

That time came after 20 minutes of futile talking and arguing. Michelle walked to the door and asked him to leave. Instead, he grabbed her and threw her to the ground.

“I remember three things about the rape,” Michelle says in a quiet and measured voice. “I remember the taste of blood in my mouth. He had hit me twice when I tried to push him off of me. I remember the stacks of boxes. I was staring at one just above his head that said ‘Fragile.’ And I remember that when he stood up, he said, ‘I know you won’t leave me if you’re pregnant.’”

When he had gone, Michelle searched through boxes for soap, shampoo and a towel. She couldn’t find a first-aid kit, so after her shower she sat on the couch for several hours holding paper towels to her face until they were soaked with blood. Then she threw the bloody towels in an empty box near her feet, pulled a few more off of the roll and waited for the bleeding to stop.

“I sat up all night. I just sat on the couch and thought through all of my options. Around 7 in the morning I called my doctor.”

After hearing her story, Michelle’s doctor urged her to call the police and report the rape. But Michelle held firm. No police, no rape charges. She just wanted the divorce as quickly and quietly as possible.

“Everyone asks the same question, why didn’t I call the police? And it’s a fair one. I would probably ask the same thing if I heard the story from someone else. But I knew if I did [report it], an already horrible situation would just get worse.

“His parents are very supportive of me and my kids. I didn’t know what would happen to those relationships if their son was charged with rape. I didn’t know what it would do to the boys if their father was a rapist. They’re already losing so much. And, as selfish as this may sound, I knew he would lose his job. And if he lost his job, he couldn’t pay child support. If he couldn’t pay child support, I couldn’t support the kids.”

After nearly an hour of discussing the options with her doctor, Michelle finally agreed to be examined in his office on Monday and to see a rape counselor. In the meantime, he would call Michelle’s pharmacy with a prescription for emergency contraception to prevent any chance of a pregnancy.

Driving to the pharmacy a little while later, Michelle said she felt a huge sense of relief. “I felt like I was down, but not out. I felt like I could get through this like I had everything else, and it would all work out.”

But standing at the pharmacy counter, Michelle learned otherwise.

Michelle’s pharmacy didn’t stock the medication. “They said they could order it for me, and it would be in on Monday afternoon. But that would be too late. By then it would be nearly 72 hours, and it should be taken during the first 24 hours. After 72 hours, it doesn’t work. I just didn’t want to take that big of a chance.”

She asked for her prescription and drove a few blocks to Wal-Mart. She knew they had a pharmacy, and she thought she would pick up a few things for the apartment while she waited.

“Again, I was trying to stay really positive. I was trying to hold myself together and concentrate on solutions, not the problems.”

The pharmacist at Wal-Mart, however, was less helpful than the previous one. “He looked at me with what was clearly contempt and said, ‘We don’t carry this.’ Then he shoved the paper back towards me and walked away. At first I didn’t understand. I mean, I thought he was saying the same thing — that they didn’t have it in stock. So I said, ‘Can you order it?’

“And from about 50 feet away, he turns and says loud enough for practically everyone in the damn store to hear, ‘I mean we don’t kill babies. You’ll have to find someone else to do that for you.’”

Michelle picked up the prescription from the counter and drove back to her apartment where she searched through boxes for the phonebook.

“I called 13 pharmacies. Some of them were nice, and said they didn’t have it in stock but could order it for me. Some of them were rude, and said they didn’t have it and just hung up. Not one of them had it available. After the last one said no, I just started to cry. I couldn’t stop.”

Michele made one more phone call. She called her doctor and through her sobs she told him that she had tried 15 pharmacies, but none of them would or could fill her prescription. Just before 5 p.m., her doctor knocked at her door with the medication in hand.

“I didn’t ask him where he got it. I didn’t even care. I was crying too hard at that point and I just wanted the whole thing to be over. I took the medicine, drank a glass of water and thanked him over and over. When he left, I just laid down on the couch and slept until the next afternoon. I woke up when my mom called and asked what time I was coming to pick up the boys.”

Moral objections

Since 1999, Wal-Mart has had a corporate policy not to sell emergency contraception, and state governments have allowed them to do so under the protection of Refusal Clauses. CVS, Walgreens and other large chains also have corporate policies of not selling certain medications, upheld by state and federal laws, allowing their employees to refuse to fill prescriptions on moral or ethical grounds.

Pharmacists for Life International, an Ohio-based anti-abortion organization of more than 1,600 pharmacists and their supporters, is one of the major advocates for the broadening of Refusal Clauses to include pharmacists.

The group maintains that a “conscience clause” gives a pharmacist the right “to refuse to cooperate knowingly with the evils of contraception and abortion in violation of their sincerely held religious, moral or ethical beliefs.”

Many groups are now lobbying for legislation protecting a doctor, hospital, insurance network or pharmacists who refuse not only to provide the medical care, but also refuse to refer the patient elsewhere. According to Pharmacists for Life, it is not wrong “to refuse to refer a client to another pharmacist since the woman and her unborn child are given a favor in terms of spiritual and physical health.”

Karen Bauer, president of Pharmacists for Life, is even more adamant. She believes a pharmacist should not only refuse to dispense medication that offends, but block all future access by that patient to the medication. Providing referrals, she says, “would be like saying, ‘I don’t kill people myself, but let me tell you about the guy down the street who does.’”

Not all lawmakers agree with this position, however. In response to a report that a pharmacist at a retail-chain pharmacy had twice rejected prescriptions for emergency contraception, Illinois Democratic Gov. Rod Blagojevich recently issued an executive order requiring that all prescriptions for emergency contraception be filled despite an employee’s moral or religious objections.

“No delays. No hassles. No lectures,” said Blagojevich, who is now being sued by a Christian law center to block his decision.

Refusal Clause laws came into vogue after Roe v. Wade struck down state laws against abortion. Since then, 47 states, including Indiana, have passed Refusal Clause laws that pertain mostly to health care professionals being allowed to refuse to perform abortions or sterilization procedures.

New proposals, however, expand this list to include the right to refuse to follow patients’ advance directives for end-of-life care, to prescribe or dispense contraceptives and to dispense “objectionable” medicines.

Hormonal contraceptives, or “the pill” as it is most commonly known, was approved as a family planning method by the FDA in 1960 and is currently taken by an estimated 21 million women in the United States. In addition to regulating ovulation, hormones are also prescribed to control the physical pain associated with menstruation, as well as frequently used as an acne treatment. But because it is a form of birth control, some pharmacists are now refusing to fill these prescriptions because of their moral and religious objections.

CVS recently issued a statement supporting any of their pharmacists’ refusals to fill birth control prescriptions. “We recognize that, in very limited circumstances, a pharmacist may have a deeply held personal belief regarding a certain medication, and we would respect their belief in that particular instance.”

Passing judgment

Near the Indiana-Ohio state line, college student Katie has her own story to tell about a pharmacist’s refusal to provide medication. She’s not pregnant, she’s not even sexually active. Katie is 19, a virgin and unable to get her prescription for birth control filled.

There is only one pharmacy near her rural campus. It’s a mom and pop place, and Pop won’t fill birth control prescriptions for women who aren’t married.

“I’ve been taking birth control pills since I was 15,” Katie explains. “I have horrible periods. Lots of blood, lots of cramps, lots of pain. So my mom took me to the gynecologist and she put me on the pill. Since then my periods haven’t been as bad. Before that, I would miss school. I would just lay in bed for days and cry and be in so much pain. But now … it’s much, much better.”

But when she moved to Indiana last fall, she couldn’t believe the first time the local pharmacist wouldn’t fill her prescription. She was standing at the counter with two friends and hadn’t anticipated “the shame he was trying to lay on me.”

“I’m sorry, young lady,” he said, “I don’t fill these.”

“What?” Katie asked, confused. It was her first semester at school, but she’d never had trouble getting the prescription where she used to live.

“I mean I don’t hand out pills so young girls can have sex,” the pharmacist told her. “If you have a husband, which I doubt, bring him in with you next time and you can have pills.” Then, according to Katie, he just turned and walked away.

Now Katie’s mom gets the prescription filled in Arizona and mails them to her daughter every month.

“I’m not even having sex! But if I was, why is it this man’s business? Why does he get to make assumptions about women and refuse to give them medicine a doctor says they can have?”

Katie pauses and then gives a small, sarcastic laugh. “I’ll bet he fills the Viagra prescriptions. I doubt any guy has to bring in a wife before getting those pills. “

Some people have said, ‘What’s the big deal? You still get your pills.’ But it is a very big deal to me. It’s a very big deal that this man can play God and doctor and pass his judgment without knowing anything about me.”

Historical time line of reproductive rights in the United States

1821 Prior to the 19th century, the U.S. had no laws prohibiting or restricting a woman’s right to terminate a pregnancy. Connecticut changes this tradition when it passes a law in 1821 stating that a woman cannot have an abortion after the first discernible movement of the fetus.

1871 The American Medical Association denounces abortion for the first time. The basis for its anti-abortion stance has nothing to do with medicine, nor does it have any reference to the “life” of the fetus. Rather, the doctors warn that abortion allows a woman to “become unmindful of the course marked out for her by the Divine … [and] overlooks the duties imposed on her by the marriage contract.”

1921 The Catholic archdiocese calls for the arrest of Margaret Sanger under “obscenity laws” as she prepares to address the first American Birth Control Conference in New York.

1936 Supreme Court rules that birth control devices can no longer be classified as “obscene.” The court gives doctors the right to prescribe and provide birth control devices to their patients.

1946 Six physicians are dismissed from Catholic hospitals for refusing to withdraw from the “Committee of 100,” a group of doctors publicly supporting birth control legislation.

1968 Pope Paul VI issues “Humanae Vitae” affirming the church’s prohibition against artificial means of birth control, a position that remains unchanged.

1973 (Jan. 22) The U.S. Supreme Court announces its decision in Roe v. Wade. The court struck down the Texas law that made it a crime to perform an abortion unless a woman’s life was at stake and recognized that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Congress enacts the first “Refusal Clause” legislation. The Church Amendment allows health care providers to opt out of providing abortions or sterilizations and mandates that practitioners cannot not be discriminated against in the workplace for refusing to provide abortions.

1976 In the case Planned Parenthood of Central Missouri v. Danforth, the Supreme Court rules against a Missouri statute that would force a married woman to obtain her husband’s approval. The first marital rape law is enacted in Nebraska, making it illegal for a husband to rape his wife.

1983 A Missouri requirement that abortions after the first trimester must be performed in hospitals is found unconstitutional. Another anti-abortion law, mandating parental consent or court authorization for an abortion, is upheld.

1992 In the case Planned Parenthood of Southeastern Pennsylvania v. Casey, while refusing to overturn Roe, the Supreme Court nevertheless upholds a laundry list of abortion restrictions (parental consent, anti-abortion counseling and a waiting period), only invalidating spousal notification.

1993 President Clinton lifts the “gag rule” that forbids doctors in federally funded clinics from mentioning the option of abortion. Congress passes the Freedom of Access to Clinics Act (FACE), making it a federal crime to use force or threats to interfere with a woman’s right to seek an abortion.

1996 President Clinton vetoes legislation that would have banned a late-term procedure, because it lacks an exception for the woman’s health as well as her life. 2000 The FDA approves RU-486 “abortion pill,” a safe, effective and private alternative to surgical abortion.

2001 On his first day in office and the 28th anniversary of Roe v. Wade, President Bush restores the “global gag rule” and bars U.S. aid to international groups that use their own money to support abortion. President Bush removes contraceptive coverage from the Federal Employees Health Benefit Plan (FEHBP), even though the Office of Personnel Management finds that the coverage does not add any additional cost to the FEHBP premiums. The House passes the “Unborn Victims of Violence Act.” The bill elevates the legal status of a fetus to that of an adult human being.

2002 President Bush withholds $34 million in funding for birth control, maternal and child health care and HIV/AIDS prevention from the United Nations Population Fund (UNFPA). U.S. House of Representatives passes “Abortion Non-Discrimination Act” (ANDA), which allows a broad range of health care entities to refuse to comply with existing federal, state and local laws and regulations pertaining to abortion services.

2003 Senate and House defeat Department of Defense (DOD) Amendments that allow women in the military stationed overseas to obtain an abortion at military facilities if they pay for it with their own funds. Currently, military women must either search for abortion services elsewhere in the country in which they are currently serving or ask their supervisors for permission and time to travel to another country where abortion is legal. The U.S. Senate and U.S. House of Representatives pass the “Partial Birth Abortion Ban” with no exception for women’s health, which President Bush then signs into law. This ban threatens to overturn Roe v. Wade and criminalizes the most common abortion procedure used after the first trimester. Immediately upon the bill’s signing, major reproductive rights organizations file three separate lawsuits. In each case, the courts have issued temporary restraining orders preventing the law from being implemented.

Abortion: the facts 

• The number of abortion providers nationwide declined by 11 percent between 1996 and 2000, leaving 87 percent of all U.S. counties lacking an abortion provider. These counties were home to 34 percent of all American women between 15 and 44 years of age.

• There are no abortion providers in 86 counties, or 93 percent of the state, leaving 61 percent of all women in Indiana living in a county with no abortion provider. Currently, there are nine abortion clinics in Indiana.

• According to a Gallup Poll conducted in 2003, 81 percent of Americans believe abortion should be legal under some or all circumstances, 18 percent believe abortion should be illegal under all circumstances and the remaining 1 percent have no opinion.

• A 2003 public opinion poll reveals only a small change in Americans’ attitudes in abortion since 1975. Thirty years ago, 75 percent of Americans believed abortion should be legal under some or all circumstances, 22 percent believed abortion should be illegal under all circumstances and the remaining 3 percent had no opinion.

• Though Planned Parenthood is commonly referred to as an “abortion clinic,” the overwhelming majority of Indiana’s 40 Planned Parenthood clinics do not perform abortions. In fact, of the nearly half a million patients who visited the Indiana clinics between January 2003 and June 2004, less than 1 percent had an abortion.

• Nearly 40 percent of Planned Parenthood patients receive pap smears and routine gynecological exams. Thus far, the term “pap smear clinic” has yet to catch on.

Tags: ,

Readers also liked…

Around the Web


Subscribe to this thread:

Add a comment

This Week's Flyers

About The Author

Laura McPhee

Today's Best Bets | All of today's events

Around the Web

All contents copyright © 2016 NUVO Inc.
3951 N. Meridian St., Suite 200, Indianapolis, IN 46208
Website powered by Foundation