August 09, 2004,
Later this week, the American Bar Association will consider a resolution introduced by its Section of Individual Rights and Responsibilities, which sets forth its opposition to government policies that interfere with the "ability of patients to access, in a timely manner, either directly or referral, medically appropriate care." Behind the veil of this seemingly innocuous proposal is a troubling attempt by the ABA to demand that the government discriminate against the religious practices of health-care providers across the country. It is yet another example of the increasingly open hostility toward religion and morality generally from the legal establishment.
Catholic hospitals and medical providers have become an integral part of the nation's health-care system, providing critical health-care services to the poor. As many as 1 in 5 Americans, regardless of religion, race, age, or ability to pay, receive health care from Catholic caregivers. More than 15 million emergency-room visits and 84 million outpatient visits occur in Catholic hospitals in a given year.
Even more critical to the mission of Catholic health care is its religious identity. Its service to the sick and dying in the community is based on core principles of faith that it can heal the person by ministering to the body as well as the soul. So as part of its outreach to the sick, Catholic health care is careful not to provide or support services that are inconsistent with the Church's teachings such as abortion, contraception, certain infertility treatments, and assisted suicide. As the Catholic Bishops' Conference has stated, "Catholic health care does not offend the rights of individual conscience by refusing to provide or permit medical procedures that are judged morally wrong by the teaching authority of the Church."
In order to permit Catholic and other faith-based health-care providers to remain religious while serving critical public functions, state and federal legislators have often provided "conscience" protection that permits religious-based health-care providers to opt out of programs or treatment that they find objectionable. For example, even though they often treat patients receiving Medicare or Medicaid, religious-based hospitals are permitted by federal law not to provide abortion services or referrals.
It is this core exercise of religious conscience and the government's accommodation of it that the ABA finds so objectionable. Citing studies with titles such as "When Religion Compromises Women's Health Care: A Case Study of a Catholic Managed Health Care Organization," the ABA argues that the religious practices of Catholic health-care providers, both individual and institutional, deny needed health services and information to patients, especially women. Its singles out certain Catholic health care-providers, such as Fidelis Care New York, a Catholic health-care system that provides Medicaid services to the residents of 33 New York counties services that might otherwise not be available were it not for the faith-based outreach. What crime has Fidelis committed that merits the attention of the nation's bar association? It refuses to provide certain "family planning services" to its patients or refer patients for such services services that contravene the core teachings of the Catholic faith.
One might argue that this sort of ABA resolution has about as much to do with the mission of a national bar association as a resolution addressing the judicial-nomination process would have to do with the mission of the American Medical Association. But putting that aside, the substance of the ABA's proposal is nothing more than a full frontal assault on the core religious tenets of the Catholic Church. No one at the ABA seems to see the irony in the fact that a resolution seeking to override the exercise of religious conscience by thousands of Catholic health care providers is being proposed by a committee devoted to the protection of "individual rights and responsibilities." Apparently, the free exercise of religion is not an individual right protected by that particular committee.
The ABA resolution is symptomatic of a much broader problem of anti-religious bigotry in the legal establishment. Indeed, the last safe harbor for bigotry in our country is religion. The recent decision mandating same-sex marriage by a Washington state lower court demonstrates the major advances made by the anti-religion movement in the last 50 or so years. In examining the possible reasons that a state might define marriage as a man-woman institution, Superior Court Judge William L. Downing rejected the notion that "morality" provides a sufficient justification for any legislation: "In our pluralistic society, the moral views of the majority can never provide the sole basis for legislation." He thus concluded that it "is not for our secular government to choose between religions and take moral or religious sides in such a debate."
Judge Downing is certainly not alone in his antagonism toward "morality" and religious influences in the law. The U.S. Supreme Court has given him plenty of cover. It has banned prayer at school graduations and football games, while growing increasingly hostile to "morals-based" legislation, such as the prohibition on same-sex sodomy invalidated in Lawrence v. Texas. The message from judges to lawmakers: Check your morality at the legislative door.
It seems that some politicians have embraced this thinking, as evidenced by Democratic standard-bearer John Kerry's recent remarks about his Catholic faith. While insisting that he believes that life begins at conception, he fervently supports abortion rights and embryonic-stem-cell research. "I don't take my Catholic beliefs, my article of faith," he says, "and legislate it on a Protestant, on a Jew, or an atheist, who doesn't share it. We have separation of church and state in the United States of America." Perhaps Democrats took that notion one step too far in hiring as the Democratic National Committee's senior religion adviser a lawyer who joined in a brief supporting Michael Newdow's efforts at the Supreme Court to have the words "under God" stricken from the Pledge of Allegiance. It was only after public outrage that the adviser resigned. But Senator Kerry's words and actions demonstrate an interesting and seriously flawed conception of separation of church and state that religion and morality have no place in our public discourse. Taking Senator Kerry at his word about his personal beliefs, one has to ask what serves as a substitute for his personal morality in his lawmaking decisions.
While always observing a formal separation of church and state, this nation has a great tradition of religiously motivated lawmaking. As early as the late 1700s, the Pennsylvania Quakers, joined by many civic and religious leaders, led an assault on the institution of slavery. The civil-rights movement of the 1960s was led by prominent religious leaders, such as Dr. Martin Luther King. Today, the Catholic Church works diligently for laws promoting social justice for the poor and for immigrants. Surely, Senator Kerry wouldn't think that the religious motives behind this sort of legislation are improper.
In his farewell address to the new nation, George Washington admonished her citizens, "Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports." What was true then is becoming all the more necessary today.
Shannen W. Coffin, a Washington, D.C., attorney, is a former deputy assistant attorney general for the civil division of the U.S. Department of Justice.