by Andrew Walden

Can the State of Hawaii force doctors and hospitals to perform abortions if legislation labels the procedure “emergency contraception”? Will the Legislature bow to pro-abortion extremists and prevent the reopening of Hawaii’s now-shuttered St Francis-HMC hospitals, loss of medical personnel, and possible statewide loss of millions of dollars of federal health funds?

HB 127, HD 1 (HCSR 209), requires hospitals and providers to provide survivors of sexual assault with “medically and factually accurate and unbiased information regarding emergency contraception, as well as access to emergency contraception”—aka the abortion pill. The bill passed the House Health Committee last session and now the House Judiciary Committee plans to hear testimony and vote on the bill on Tuesday January 24.

Because it does not allow for any “right of conscience” exemption to abortion objectors, HB127 violates American Medical Association policy: "Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles." This AMA policy applies not only to abortion, but also to torture, death penalty, sterilization, and assisted suicide.

Thanks in part to the Legislature’s failure last session to advance HB608 which would have provided financial support to the St Francis-HMC hospitals’ Organ Transplant program, both HMC hospitals are now closed. Hawaii is without an organ transplant program, the bone marrow registry is gone and emergency rooms throughout Oahu are overflowing. But the hospitals could be reopened if the Hawaii Legislature advances legislation now under consideration which would tap federal funds to increase Hawaii hospitals’ and physicians’ Medicare/Medicaid reimbursement rates.

This hope for a solution to Oahu’s medical crisis would be dashed if the Legislature bows to pro-abortion extremists’ drive to force all medical personnel to carry out abortion whether they want to or not. Even worse, HB127 and its sister bill SB218 are basically a staging ground for a legal maneuver related to national efforts by the Obama Administration to force religious institutions to pay for or even provide abortion.

Liberal Catholic magazine Commonweal January 13 explains: “In August, the Department of Health and Human Services issued a ‘draft’ ruling that would mandate coverage of contraception and sterilization in health-insurance plans, including those provided to employees of Catholic institutions.” That draft ruling became a mandate on January 20. Religious institutions have until August 2013 to figure out how to comply—unless litigation, Congress, or a change in President force HHS to withdraw the order. A ruling on litigation from Hawaii from the abortion-friendly US 9th Circuit Court would force the issue into the Supreme Court on the terms most advantageous to the abortion industry.

The permanent closure of St Francis HMC Hospitals in Ewa and Liliha are not the only medical losses risked by HB127.  In spite of Obama's HHS mandate, the enactment of a State law without the individual “right of conscience” triggers numerous Federal laws potentially causing loss of all federal healthcare funds. With Hawaii facing a shortage of medical personnel the imposition of such a government-mandated treatment regime without allowing for “right of conscience” exemption can only be discouraging to potential recruits. It is not known how many Hawaii emergency room physicians, Ob-Gyns, and nurses would quit or relocate rather than accept a law commanding them to perform a medical procedure they see as abortion.

Senate hearings for SB218 last session drew strongly-worded testimony. Loretta J Fuddy, acting Director of the Department of Health testified in opposition to the bill as did Joy Yadao of St Francis Hospitals. Walter Yoshimitsu, Executive Director of the Hawaii Catholic Conference connected the dots:

Because of its religious tenets, St. Francis Healthcare System, does not provide abortion services, including “emergency contraception” which may induce early abortion. While it is true that the former St. Francis hospitals are now the Hawaii Medical Centers (HMCs), there are two crucial legal items that merit your attention.

First, St. Francis still owns the land upon which the HMC’s operate. Second, the legal relationship between HMC and St. Francis is governed by a contract binding HMC to operate the hospitals in a manner consistent with Catholic ethical and religious directives. Those directives prohibit complicity in the termination of life, beginning at the moment of conception. Emergency contraceptives sometimes work post‐fertilization, resulting in the termination of the new young life and the ending of the pregnancy. This violates a core religious directive. Passage of this measure would use government force to compel St. Francis to provide ‘emergency contraceptives’ which can act as abortifacients – something that would be directly contrary to St. Francis’ religious beliefs in the sanctity of human life.

If the government can compel that which religion prohibits in this instance, there is no legal or public policy justification left to stop this state legislature from requiring religious hospitals to perform surgical abortions. Yet legislators tell me uniformly they are not interested in such a mandate. However, the underlying principles are no different.

St. Francis and HMC are not suggesting other health care facilities adopt their practices. Nor are they suggesting the government codify Catholic medical practice protocols. We simply request the same courtesy and consideration. We respectfully suggest the legislature can achieve its purposes and balance religious liberty, tolerance and diversity of opinion by granting a religious exemption.

Years ago, we worked with the proponents on an exemption that achieved the proponents overall objections while respecting the religious rights of religious institutions. Unfortunately, certain of the proponents with an extreme position were willing to have no law rather than accommodate the sincerely held religious differences of other important members of our community. I appeal to you to reject such an extreme position and include a religious exemption.

Honolulu attorney Robert K Matsumoto cited several successful “right of conscience” lawsuits and explained:

The American Center for Law and Justice…with whom I have worked in the past, has instituted lawsuits in various parts of the country to protect the civil rights of employees (to not be forced to) dispense the so-called “morning after” pill or to make referrals to those who do. …such compulsion violates the First Amendment rights…of such employees and others.

Allen Cardines of Hawaii Family Forum pointed out:

We oppose both of these measures because we believe that the government should never force religious institutions to act contrary to their religious belief. Forcing Catholic hospitals to offer contraceptives in rape cases when an early abortion may result conflicts with their religious and ethical duty to do no harm to human life, including the unborn.

Let's be clear, however, that the Hawaii Family Forum fully supports the compassionate care of rape victims. We understand that the Hawaii Medical Centers provide a full range of services responding to sexual assault.

We respectfully suggest the legislature can achieve its purposes and balance religious liberty, tolerance and diversity of opinion by granting a religious exemption.

Without a “right of conscience” SB218 and HB127 are a clear violation of several federal laws including the 2005 Weldon Amendment and 42 USC § 238n which reads:

The Federal Government, and any State or local government that receives Federal financial assistance, may not subject any health care entity to discrimination on the basis that—

(1) the entity refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions

Violation of these laws may place tens of millions of dollars of federal health funding at risk—exacerbating Hawaii’s budget problems.

While couching itself in language about “survivors of sexual assault,” in reality SB218 and HB127 require hospitals to distribute abortion pills to any woman claiming rape. The bill emphasizes:

“No hospital shall deny a sexual assault survivor emergency contraception based on a refusal to undergo a forensic or other medical examination or a refusal to report the alleged sexual assault to law enforcement.”

DoH Director Fuddy pointed to the law’s numerous shortcomings, including the absence of a system to report child sexual abuse:

In order for a statewide EC system to be implemented, the following functions need to be developed: 1) Data surveillance system of he need and utilization rates for EC; 2) Purchasing and distribution system for prescription and over the counter EC; 3) Monitoring and enforcement of hospital compliance; 4) Billing system for reimbursement for EC; 5) Protocols and written policy regarding the treatment and referral of sexual assault, especially for minors; and 6) Workforce training and development on sexual assault and EC.

What SB218 and HB127 call “emergency contraception” or “EC” under the bill language could be interpreted to include “Plan B One-Step”, and “Next Choice”, and the newly approved drug “Ella”. Pro-Abortion group NARAL goes to great lengths to claim “Plan B One-Step” and “Next Choice”, and “Ella” do not abort a fertilized human embryo or fetus. But the Association of Pro-Life ObGyns explains:

…chemically a first cousin to Mifepristone (RU 486), the “medical abortion” drug that kills the baby by blocking placental function. Ella has the same action: they are both selective progesterone receptor modulators (SPRM). The generic name is Ulipristal.

Today’s approval, labeling “ella” as emergency contraception, is deceptive and dangerous to women and their newly conceived baby. Women deserve to know that “ella” can cause death of the embryo, and the FDA is deliberately misleading women by mislabeling “ella” only as contraception, and not as abortifacient.

According to the text of SB218 and HB127, 5% to 8% of rape victims become pregnant. Not mentioned in the bill, users of “Plan B” suffer a 6% rate of life-threatening ectopic pregnancy.

After California passed a law mandating abortions in cases where the woman’s life was in danger, the State initiated litigation leading to mixed results. The AMA News explains:

The Weldon Amendment allows the government to withhold federal funding from any federal, state or local entities that discriminate against doctors, hospitals or health plans that choose not to offer or cover abortion services. This federal conscience protection passed in 2005 and has been extended each year since….

But California worried that it stood to lose as much as $50 billion in health care and other federal dollars if it enforced a different state law requiring health care entities to provide or refer emergency abortions when the life or health of the pregnant woman is at risk. State officials argued that the Weldon Amendment was unconstitutional because it lacked an explicit exception for such scenarios and interfered with California's right to carry out its statute….

"The Weldon Amendment is a very essential protection for all physicians, and this [case] has a potential impact greater than the abortion issue because it goes to the very heart of professionals' right of conscience," said David Stevens, MD, CEO of the Christian Medical and Dental Assns. That group opposes abortion and joined the lawsuit as a defendant.

Doctors don't object to providing emergency abortions, which Dr. Stevens defined as those performed because the woman's life was threatened. But if California imposed its law to pressure doctors or hospitals to perform the procedure in other circumstances -- or censure them if they don't -- the issue may find its way back to court, he said.

Now it is Hawaii which is being asked to construct a law for the purpose of initiating litigation in the 9th Circuit. This time the abortion lobby will test whether they can chip away at the conscience clause by claiming that abortion pills are just contraception and rape victims are the only mandated recipient. Why not include the same mandate for women whose lives are threatened by a possible pregnancy? Perhaps to establish a more clear-cut opportunity to chip away at the right of conscience through litigation.

The threats to St Francis Hospitals echo a national debate over the federal “Freedom of Choice Act” (FOCA) of 2008, a failed proposal which many felt would have stripped hospitals and doctors of their “right of conscience.” According to Slate, November, 2008:

(The “right of conscience” laws) allow Catholic hospitals and health providers that receive public funds through Medicaid and Medicare to opt out of performing abortions. Without public funds, these health centers couldn't stay open; if forced to do abortions, they would sooner close their doors. Even the prospect of selling the institutions to other providers wouldn't be an option, the bishops have said, because that would constitute "material cooperation with an intrinsic evil."

Chicago Auxiliary Bishop Thomas Paprocki underlined the point in late 2008 appearances and interviews:

"[FOCA] could mean discontinuing obstetrics in our hospitals, and we may need to consider taking the drastic step of closing our Catholic hospitals entirely. It would not be sufficient to withdraw our sponsorship or to sell them to someone who would perform abortions. That would be a morally unacceptable cooperation in evil.

"I do not think I'm being alarmist in suggesting the need to take such drastic steps," Paprocki said, adding that his brother bishops "need to be prepared to respond in the face of increasingly militant threats to unborn life."

In the Chicago Tribune, Paprocki is quoted: "If Catholic hospitals were required by federal law to perform abortions, we'd have to close our hospitals."

---30---

HB127: Legislature to Force Doctors, Hospitals to Provide Abortion Pill?

HB127: Text and Status

SB218: Text and Status

LINK: Conscience Laws

SLATE: Lose-Lose on Abortion Obama's threat to Catholic hospitals and their very serious counter threat

National Review: Slate Warns of the FOCA Threat to Religious Liberty and Health Care in America

HotAir: Does FOCA mean an end to Catholic health care?

CBS: Abortion Foes Warn Of Hospital Closures

GovTrack: Freedom of Choice Act (Failed in every Congress since 1989)

Commonweal: An Illiberal mandate

Michael Sean Winters: J'ACCUSE! Why Obama is wrong on the HHS conscience regulations