Last Thursday, in Wege Auditorium, Sara Dubow, associate professor of history, gave the third installment in the faculty lecture series. In her talk, “A Constitutional Right Rendered Utterly Meaningless: Religious Exemptions and Reproductive Politics, 1973-2014,” Dubow explained that her interest in the topic grew out of her experience writing an article on “conscience clauses relating to abortion, sterilization, and contraception.”
Dubow began her talk by defining conscience clauses as legal clauses that go along with some U.S. laws exempting physicians and other health-care providers from supplying medical services that conflict with their religious beliefs or conscience. Conscience clauses are particularly relevant now, Dubow continued, since the Affordable Care Act contains a conscience clause excusing religious institutions from providing contraceptives.
In Burwell v. Hobby Lobby Stores, Inc., which the U.S. Supreme Court issued a ruling on in 2014, two for-profit companies challenged the conscience clause in the Affordable Care Act. The companies maintained that they “wanted to be included” in the clause and their exclusion from it “violated their religious freedom,” the right to which was granted by the 1993 Religious Freedom Restoration Act.
The main questions facing the Court, explained Dubow, were whether “a for-profit corporation was a person” and if so, did the Affordable Care Act “substantially burden [its] free exercise of religion” as was guaranteed by the RFRA. In a 5-4 decision, the Supreme Court ultimately found that “corporations controlled by religious families could not be required to provide contraceptives.”
As she continued to research for her article, Dubow discovered that numerous briefs filed for Hobby Lobby referred to the very first conscience clause, the Church Amendment. The Church Amendment, proposed by its eponymous creator Idahoan Senator Frank Church, was “passed as an extension of the Health Program Extension Act [in 1973] and said that federal funding did not require” hospitals to perform abortions if they conflicted with their religion or morals. The Church Amendment passed nearly unanimously, but several members of Congress voiced their disapproval for the legislation. Dubow questioned why there was “such a broad consensus” regarding the conscience clause when there were clearly several people who vehemently opposed it.
As the Amendment was up for debate three short months after Roe v. Wade (1973), in which the Court ruled that a pregnant woman had the right to seek an abortion, most “legislators framed their support for the conscience clause as support for freedom of religion” rather than opposition to abortion in order to avoid controversy. In fact, many lawmakers viewed the clause as a “way to diffuse abortion tension.”
One of the most vocal members of the opposition was Bella Abzug, a representative from New York. She believed that “no woman should be prevented from having an abortion” simply because another person’s conscience was against it. She also contended that the Church Amendment would discriminate against less wealthy women: If a poor woman’s neighborhood hospital refused to perform abortions, she would not have the ability to go elsewhere to seek an abortion. In other words, her “constitutional right [would be] rendered meaningless.”
Another member of Congress strongly opposed to the Church Amendment was New York Senator Jacob Javits. Javits agreed with Abzug, stressing that the Amendment would deny women their 14th Amendment rights. He also wondered “if institutions [could] even have religious views” and worried what would become of doctors who wanted to provide abortions for their patients but were employed by hospitals that refused to allow abortions. He proposed an amendment that would protect doctors who sought to offer abortions at hospitals that did not allow them, seeking to ensure their hospital privileges.
Dubow speculated that Abzug ultimately decided to vote for the amendment because she believed it would lead members of Congress to support her proposed equal rights legislation. Dubow also noted that she may have realized that the amendment would pass regardless of how she voted, and decided it would be unwise to “risk the political capital.”
Since then, the argument that conscience does not only justify an individual’s refusal to permit abortions, but can also justify a woman’s desire to have an abortion, or a doctor wanting to perform one, has been lost, with serious consequences.
In 1974, Abzug’s main concern was realized with the passing of the Legal Services Corporation Act, which states that Legal Aid lawyers “could not participate in abortion litigation.” The 1976 Hyde Amendment has also disproportionately impacted impoverished women; the amendment “prohibits the use of Medicaid funds for abortion.” With these acts of legislation and others, the government has “continued to expand the scope of the Church Amendment.”
“Almost all of the concerns expressed by the opposition of the Church Amendment have been realized in the 40 years since its passage,” Dubow said. Ever since the first conscience clause, the same patterns have shaped reproductive rights discussions. Today, Hobby Lobby “embodies the concerns” of those who resisted the Church Amendment.