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A Miscellany of Resistance

In this entry I called for civil disobedience by doctors in Victoria, Australia, to a law that says they must either participate in abortions or refer women seeking abortions to doctors who have no conscientious objection to abortion.

Wesley J. Smith has been talking about the theme of resistance to the culture of death. Being a lawyer (which I, fortunately, am not), he is not calling directly for civil disobedience but for other forms of resistance. In either event, the theme of resistance is a tremendously important one. Smith's simple point is that the legality of some atrocious act does not make it morally right and that individuals must find ways to stand up and say "no" to atrocious things, even when those things are legal. He might have said, but didn't, that we must stand athwart the path of history shouting, "Stop!" So here are a few suggestions and/or instances of resistance:

In the wake of Washington State's recent legalization of doctor-assisted suicide, Smith calls for healthcare facilities and doctors' offices to declare themselves "suicide free zones," to make a public statement that they will not participate in nor permit assisted suicide on their premises. As he points out, Eastern Washington's largest hospital system has already made such a statement--a heartening development.

Here he tells of a case in Italy of a woman in a so-called "vegetative state." The courts have declared that she may be killed by dehydration, but so far the medical profession in Italy is presenting a united front and refusing to remove her nutrition and hydration. It appears that they are not being sanctioned for this refusal yet, and the story here says that the father may "have to" take his daughter abroad to have her killed by dehydration.

The same entry from Smith tells of a doctor in Yugoslavia who abruptly stopped doing abortions after nearly thirty years of performing them. He was penalized in the standard communist fashion--loss of pay and professional retribution against his grown children. (The story of his conversion is particularly odd and surprising. While an especially gruesome abortion was the immediate catalyst of Dr. Adasevic's decision, his claim, apparently, is that it was preceded by a repeated dream in which St. Thomas Aquinas, of whom he had never heard before, came to him in his black and white Dominican habit and showed him the children he had killed by abortion.)

Most of us are not medical professionals, and in the nature of the case the burden of resisting the culture of death falls most directly on those called upon actually to do harm. Increasingly, even in the West, those calls are becoming more strident. Yet I am not sure that the rest of us will be allowed to get off scot-free, either. The matter of consenting to the death of loved ones of dehydration seems particularly likely to arise for those of us who hold a durable power of attorney for healthcare.

Smith's idea of taking an active approach is worth considering. If a doctor is in a state where assisted suicide is legal, posting a "suicide-free office" sign seems a minimal flag of defiance. If relatives ask you to agree to be their DPA for healthcare, make sure they know where you stand on matters of life and death. Make it clear to your family where you stand on assisted suicide and that you will never give your blessing to their engaging in it, especially if family members live in a state where it is legal. These might seem like small things, but my crystal ball tells me that it will be a shockingly short time before they will not seem so small. Readers are welcome to contribute other concrete ideas.

Comments (19)

Australia??? Why not care about what will happen in America now that Obama is President?

Ed Morissey at Hot Air tells us how serious the bishops are about not allowing Catholic Hospitals to be forced into performing abortions under FOCA:

"[The bishops will] shut them down and take the losses in order to prevent their use as abortion clinics. To do otherwise, the bishops stated, would be to cooperate in the evil of abortions.

What kind of impact would that have? The Catholic Church is one of the nation’s biggest health-care providers. In 2007, they ran 557 hospitals that serviced over 83 million patients. The church also had 417 clinics that saw over seven million patients. If they shut down almost a thousand hospitals and clinics nationwide, the US would not just lose a significant portion of available health care, but the poor and working-class families that received the health care would have fewer options.

Also, the Catholic Church runs this on a non-profit basis, spending vast sums of its money to ensure access for those unable to pay. That’s the kind of model that many on the Left believe should exclusively provide health care — and FOCA would spell the end of the major provider already in that model."


I do care, certainly. The bishops are absolutely right to take this stance. I still have not gotten absolutely clear in my mind as to the immediate connection between _striking down_ state conscience clauses regarding abortion and _requiring_ doctors to perform or refer abortions. It might seem that the latter follows automatically as a matter of law from the former, but this isn't clear to me. Not that this makes FOCA something that should not absolutely be fought tooth and nail. There are so many reasons to fight it,and the removal of state conscience clauses for performing abortion is one of those. But (fortunately?) whether doctors and hospitals will immediately have to allow or perform abortions may depend on what other state and federal laws are already in place at the time.

The Australia law is particularly explicit and seems to me a portent of things to come and of what the liberal establishment would like to do. If they don't manage it with FOCA they will try to do it with something else.


The Australia law is particularly explicit and seems to me a portent of things to come and of what the liberal establishment would like to do. If they don't manage it with FOCA they will try to do it with something else.

You couldn't have said it any better!

I'm certainly appreciative of your original Australia entry that provoked subsequent discussions.

Talk about something that hits so close to home!

Thanks for posting this, Lydia.

It seems the most immediate impact striking conscience clauses would have will be on medical students and future docs. As it now stands, a conscience clause allows a med student to refuse training in abortion during rotations. If they were forced to do it, or forced to be trained in it in order to obtain an ob-gyn specialty, the pool of pro-life ob-gyns and doctors generally would be greatly diminished.

It would seem that striking the clauses would also open up docs and hospitals who refuse to do it to lawsuits (see eg, eHarmony on refusing to offer same sex matching services). The law may not be explicitly the same as the Australian version, but its effects would seem to be very similar.

Yeah, I haven't got that figured out. I think it would have to depend on what the situation would have been under state and federal law if the conscience clauses hadn't been in there in the first place. That is, how did they affect the legal landscape in the first instance? After all, it isn't _automatically_ the case that a doctor is obligated to assist in or refer for any procedure that isn't expressly named in a state conscience clause. Most of those things are just left up in the air. My impression is that the state conscience clauses were a) to prevent lawsuits, as you say, and b) a preemptive move to override or prevent laws at, say, the city level (such as I believe there have been in New York City) expressly requiring medical student training in abortion.

"apparently, is that it was preceded by a repeated dream in which St. Thomas Aquinas, of whom he had never heard before,"

Is it really possible that a person might graduate from an European university and professional school and never hear of TA?

Lydia--there's also the issue of licensing. Doctors' licenses are issued by the state. If the federal law defines access to abortion as a right, it could require a state to condition doctors' licenses on the willingness to assist in abortion. And some state licensing boards are already requiring doctors to participate in any "legal" care sought by a patient, precisely because they define professional duty as including immediate access to anti-life procedures. It's starting with emergency contraception and trickling up.

msb, do you know which states have that "access to any legal care" clause in place? That's exactly the sort of thing I had in mind as far as the background of state laws.

The complexifying aspect of FOCA is that as I understand it it defines abortion as a right vis a vis all positive law, so that positive law, federal or state, may not "discriminate" against abortion as compared with other procedures. So, if a state doesn't have 24-hour waiting periods for other procedures, it can't for abortion. And so forth. If a state doesn't have special conscience exceptions for other procedures, it can't for abortion. Then the question is, what does it mean if the state _doesn't_ have such special conscience clauses for some procedure, as in fact it doesn't for most procedures? I suspect this may be a legal grey area.

Al, I didn't say I believed the whole story. I'm passing it on. I think it's interesting. I'm not at all sure that a "European" university, where that is interpreted as "communist Yugoslavia" is _terribly_ likely to give its students even a nodding acquaintance with Aquinas. I'm quite sure there are young people graduating from colleges now who haven't heard of him. My 9-year-old mentioned Genghis Khan to her speech therapist the other day--a senior at our local state university. Blank look. It's pretty plain that she hadn't heard of him.

Hmmm--I think my comment got stuck in moderation.

Weird. I tried to repost it and it says it is waiting approval. Did I say a bad word?

msb, I went in as a contributor and couldn't find your comment at all. I'm assuming it had more than one link in it. I suggest trying breaking up the links if you had more than one. It holds comments with more than one link. Still, I should have been able to find it and approve it, so I'm kinda baffled.

Yes that's it, more than one link.

OK here goes:

Here are a few links in the trend:




The thing with FOCA is that it establishes very broad rights, and leaves them up to even broader pro-abortion interpretations.

Anti-live elites define the "right" to abortion as including "access," and they define "access" as including compelled involvement by health professionals. They define "interference" as anything with adversely impacts the right, even a little. They define "discrimination" as including outcomes and societal effects.

It is easy to import nutty liberal ideas of equality into abortion law--that's what abortion law is. Employment discrimination law has long prohibited as "discrimination" any rule that has a "disparate impact," even if they are facially neutral and have no discriminatory intent. Analogously, if someone alleges that poor women have less "access" to abortion because of conscience allowances by the state, that could be discrimination.


See footnote 9 and the surrounding text here for a Senator who made this argument, in the course of opposing an amended version of FOCA in 1993 because it had an exception protecting conscience (the new version took all the exceptions back out):


I think the Wisconsin statute is illuminating, msb. It looks like some (most? all?) states have on the books some sort of broadly-worded statute requiring doctors to tell patients about "all viable treatments" or something vague like that, and that these statutes can be interpreted so as to require that doctors be morally neutral as among all treatments available and commonly performed and participate in referring a patient for any such treatment if the doctor himself doesn't want to do it. Probably there is a lot of vagueness about how this is interpreted, with the notion of "standard of care" being the legal bottom line. Gradually a treatment becomes "mainstream," and then it is the "standard of care" and doctors are expected under such statutes to offer or refer for that treatment if a patient consults them. That's my guess. If that's the legal background in most states, then it's easy to see where the conscience clauses for abortion are important. If they were struck down, the situation would, in states that have a statute like Wisconsin's, revert to the presumption that the doctor would refer for an abortion.

Now, this is conjecture. I don't know how widespread that type of statute is or whether it exists on the books in states which also have conscience clauses. The statement of the pro-abort arguing against the earlier version of FOCA _seems_ to indicate that in the absence of explicit conscience clauses, doctors would be required to provide or refer for abortion. But then again, she could be wrong. (You wouldn't believe the sheer legal stupidity of some of the things lawmakers say, including Barack Obama, actually. In one place he implies that an abortionist performs an abortion only after determining that the fetus is not viable, which is nonsense.)

But if there is a background legal presumption in all state laws that doctors will participate in or refer for all legal procedures for patients, then the conscience clauses really do become very crucial. I would expect, as you suggest, msb, that in the absence of conscience clauses the penalty would not be one of direct punishment for breaking a law (as in Australia) but rather lawsuits or risk of loss of professional license.

We are getting there fast. Note two things about the New Jersey law. First, it really already compels participation in abortion. And I don't mean that emergency contraception is abortion (it is). I mean that the law isn't limited to emergency contraception--it requires giving out any legal drug. There are a lot of first trimester abortions performed by drugs alone today, notably RU-486 and also methotrexate. Generally you have to get them from a doctor directly, but under Obama how quickly will that change so you can just get a prescription and fill it at the drugstore? It is no leap at all to move from this law to requiring surgical participation, as ACOG recommended.

Second, many of these state licensing agencies are not limited to imposing the mere revocation of a license (as devastating as that alone is). The statutes often give agencies, and state prosecutors, the power to impose monetary fines, and even to arrest someone or hold him in contempt of court for a violation. See New Jersey Statute 45:1-25.

[NB: the Wisconsin link is a agency regulation, not a statute, but it is still law because agencies are empowered to set standards and impose them]

A true Shepherd counts the cost and takes the narrow, heroic path of resistance;

‘If American youth are willing to go to war and lay their life down to defend our freedoms,’ Bishop Hermann continued, ‘then every bishop should be willing to give up his life, if it meant putting an end to abortion. And if we’re willing to do that, then we should be totally fearless of promoting this cause without being concerned about political correctness, without trying to build coalitions with pro-choice people.’

‘Behind Planned Parenthood, behind the abortion issue, is the evil one,’ Bishop Hermann added. ‘I often see human beings caught up in this as victims of the evil one who need my prayers and who need my compassion and who need my love. We don’t only want to save our children from destruction; we also want to save our adult brothers and sisters from eternal destruction.’

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