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The Government Shouldn't Force Pro-Life Doctors To Promote Abortion, And A Federal Judge Agrees

Forbes Online

Monday, July 24, 2017  |  Commentary  |  By George Leef

Abortion (1) , Health Care
The Alliance Defending Freedom is a public interest law firm that fights to maintain religious liberty, free speech, and the right of people to freely live out their faith. The group was recently branded a “hate-group” by the Southern Poverty Law Center, which seems to think that disagreement with its ultra-left beliefs amounts to “hate.” (Major news networks repeated the smear, as we read here. Former Attorney General Edwin Meese responded in this Wall Street Journal op-ed, “If reporters want to regain public grust, they must stop spreading malignant propaganda and instead demonstrate a commitment to fairness and objectivity.”)

One reason why ADF has earned the enmity of SPLC (and many others on the Left) is the success it has had in litigating against overreaching government policies that infringe upon Americans’ constitutional rights. Such a case is National Institute of Family and Life Advocates v. Rauner.

That case arose because last year Illinois amended its 1977 Healthcare Right of Conscience Act, (HCRCA) a law enacted to “respect and protect the right of conscience of all persons who refuse to act contrary to their conscience in providing health care services and medical care.” The law specified that no healthcare provider could be held criminally or civilly liable for refusing to counsel or participate in any service that is contrary to his conscience.

But the law as recently amended provides that the protection of the HCRCA is lost to healthcare providers unless they adopt certain protocols that boil down to this: those who object to abortions must inform pregnant women about the availability of abortion, its possible benefits, and to provide them with information about other clinics “they reasonably believe may offer” abortions. In short the law now says: Either do abortions or give women referrals to places that do.

The most glaring problem with the new law is that it compels Americans to speak. The First Amendment doesn’t just keep the government from censoring speech or punishing people for saying what officials don’t like, it also prevents government from forcing people to speak against their will. But that is exactly what the Illinois law now does. Healthcare providers who are morally opposed to abortion are forced to speak by advising women about abortion, its purported benefits, and by informing them where they “reasonably believe” they can go to obtain an abortion.

ADF Senior Counsel Kevin Theriot put the matter this way: “Medical professionals and pregnancy care centers shouldn’t be forced to speak a message completely at odds with their mission and ethics.”

A person on trial for murder cannot be forced to testify in court, but a doctor who doesn’t want to in any way assist in the taking of a life does not have the same right not to speak.

ADF filed suit to block enforcement of the law last fall in US. District Court for the Northern District of Illinois. The case was heard by Judge Frederick J. Kapala, who issued his ruling on July 19. Judge Kapala enjoined the state from enforcing its new law. This is not a final adjudication of the merits of the case, but the judge found sufficient reason to believe that the plaintiffs would prevail on the constitutional issues for him to block enforcement of the law for now.

In explaining his decision, Judge Kapala wrote, “The plaintiffs have demonstrated a better than negligible chance of succeeding in showing that the amended act discriminates based on their viewpoint by compelling them to tell their patients that abortion is a legal treatment option, which has benefits, and, at a minimum and upon request, to give their patients the identifying information of providers who will perform an abortion.”

Crucially, Judge Kapala looked at the Supreme Court’s most recent decisions regarding freedom of speech, such as Knox v. SEIU in 2012, where it held, “The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”

That is just what the Illinois law does – compel the endorsement of abortion. Those who think abortion is perfectly acceptable have abundant resources to spread their message, but the Constitution does not allow a state to dragoon individuals who are morally opposed to it into assisting them.

The case will now proceed – unless the cash-strapped state decides to cut its losses by either repealing the amendment to HCRCA or simply allowing Judge Kapala’s injunction to remain in force indefinitely.

Just a few days before the ruling in the Illinois case, ADF filed a suit in Hawaii against a similar law. Recently signed into law by Governor David Ige, Senate Bill 501 mandates that pro-life pregnancy centers post large signs and provide fliers to inform women that the state “provides free or low-cost access to comprehensive planning services,” including abortion. Furthermore, such centers must provide a website and telephone number to help women take advantage of the state’s services.

It’s easy to see that this Hawaii statute suffers from the same constitutional defect as does that in the Illinois case. ADF attorney Elissa Graves explains, “Freedom of speech also means the freedom not to express views that violate one’s conscience. Yet, under this law, Hawaii is forcing pro-life centers and physicians to provide free advertising for the abortion industry against their conscience.”

For an alleged “hate group,” ADF appears to be doing exemplary work in upholding the rights of individuals to speak and act (or not) according to their own beliefs.

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