ABORTION AND THE CONSCIENCE CLAUSE

INFORMATION TO USERS This material was produced from a microfilm copy of the original document. While the most advanced technological means to photograph and reproduce this document have been used, the quality is heavily dependent upon the quality of the original submitted. The following explanation of techniques is provided to help you understand markings or patterns which may appear on this reproduction. 1.The sign or "target" for pages apparently lacking from the document photographed is "Missing Page(s)". If it was possible to obtain the missing page(s) or section, they are spliced into the film along with adjacent pages. This may have necessitated cutting thru an image and duplicating adjacent pages to insure you complete continuity. 2. When an image on the film is obliterated with a large round black mark, it is an indication that the photographer suspected that the copy may have moved during exposure and thus cause a blurred image. You will find a good image of the page in the adjacent frame. 3. When a map, drawing or chart, etc., was part of the material being photographed the photographer followed a definite method in "sectioning" the material. It is customary to begin photoing at the upper left hand corner of a large sheet and to continue photoing from left to right in equal sections with a small overlap. If necessary, sectioning is continued again — beginning below the first row and continuing on until complete. 4. The majority of users indicate that the textual content is of greatest value, however, a somewhat higher quality reproduction could be made from "photographs" if essential to the understanding of the dissertation. Silver prints of "photographs" may be ordered at additional charge by writing the Order Department, giving the catalog number, title, author and specific pages you wish reproduced. 5. PLEASE NOTE: Some pages may have indistinct print. Filmed as received. University M icrofilm s International 300 North Zeeb Road Ann Arbor, Michigan 48106 USA St. John’s Road, Tyler's Green High Wycombe, Bucks, England HP10 8HR with permission of the copyright owner. Further reproduction prohibited without permission I ! MASTERS THESIS 13-10 ,49 0 S IN N I, Richard John ABORTION AND THE CONSCIENCE CLAUSE. S tate U n iv e rs ity o f New York a t Stony Brook, M .S ., 1977 Health Sciences, h o sp ital management Xerox University Microfilms, Ann Arbor, M ichigan 48106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ABORTION AND THE CONSCIENCE CLAUSE A thesis presented by Richard John Sinni to Health Sciences Center School of Allied Health Professions in partial fulfillment of the requirements for the degree of Master of Science in Health Services Administration State University of New York at Stony Brook Augu'St » 1977 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. STATE UNIVERSITY OF NEW YORK AT STONY BROOK Health Sciences Center' School of Allied Health Professions Richard John Sinni We, the thesis committee for the above candidate for the Master of Science degree in Health Services Administration, hereby recommend acceptance of the thesis. Committee, Chairman James Brindle, A.B. Waqpn Balinsky< TPh. D. Joseph Fitzpatrick M.P.H. The thesis is accepted by the Health Sciences Center, School of Allied Health Professions. ^E d m u n d J. M Ternan Ed.D. Dean Robert 0. Hawkins Associate Dean . M.Ed August , 1977 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Abstract of the Thesis ABORTION AND THE CONSCIENCE CLAUSE ■by Richard John Sinni Master of Science in Health Services Administration State University of New York at Stony Brook 1977 The Supreme Court decisions of 1973 were historical and radical liberalization of this country's legal attitude on the abortion issue. Clearly it established the right of a pregnant woman to treatment, to self-determination. This paper is a study of two of the legal aspects of the abortion issue: The meaning of the United States Supreme Court decisions of 1973; the impact of those deci­ sions upon any private, denominational hospital declining to provide its facilities for the abortion procedures. Does a voluntary denominational hospital have the right to manage its own affairs within the context of its moral and religious beliefs. iii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Acceptance of public funds, from grants, Medicaid, Medicare, tax exempt bonds, transforms voluntary hospitals! character into quasi-public institutions, with obligations to public service; the State Action concept. Emergency Room services presumably reflect a hospi­ tal's willingness, hence responsibility, to offer its facilities to the public at large, without discrimination. Can a private denominational health facility upon which a specified population must depend for the totality of its medical services remain free to be selective in the choice of services it will provide. Prohibiting any court from finding that receipt of public funds requires hospitals to make their facilities available for abortions was the enactment of the Health Programs Extension A ct. (Section ^Olb) This study includes recent developments in both case and statutory law and points out the trends that they appear to signal. Conclusions drawn are that the courts will be called upon to mediate dilemmas in which rights are in genuine conflict. iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Table of Contents Page I Abstract.................................... iii Table of Contents........................... v Preface..................................... vii The Context of the Abortion Controversies... 1 The Conflicting Theological and Legal II Positions............................ 2 The Traditional Position.............. 2 The Modern Viewpoint................... ^ The Freedom of Conscience Question 7 The Special Status of Abortion........ 7 The Question of Cooperation........... 9 The Supreme Court Decisions................. The Two Decisions - Roe vs. Wade..... Doe vs.Bolton III 11 11 13 The Rights at Issue.................... 15 The Right to Privacy................... 15 The Right to Refuse.................... 17 The Conscience Clause Issues................ 21 The Principal Source ofChallenge 21 State Action........................... 21 Conscience............................. 26 v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Page The Potential Challenges............. 29 The Right to Treatment................ 29 The Geographically IsolatedHospital... 30 State Law ......... Hospital By-Laws....................... IV 31 31 Findings and Implications.................. 3^ Attitude Survey Findings.............. 3^ Summation.............................. 36 Attitude Survey............................. 39 Method................................. 39 Purpose. .................... Appendix A - Questionnaire................. vi Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 39 ^1 PREFACE This paper is a study of the legal aspects of the abortion issue. The meaning of the United States Supreme Court decisions of 1973* and the impact of those decisions upon any private, denominational hospital choosing, for example, to refuse to provide its facilities for the abortion procedure. The subject is divided into three chapters, with a summation following. There is first a presentation of the opposing religious/ethical positions on this question, aand the manner in which those positions have been codified in civil law. In addition, it is expedient to point out why abortion is theologically different from most other values in terms of freedom of religion. The moral basis for the legal dilemma. The more significant findings of the 1973 Supreme Court rulings is developed, highlighting elements of that decision which are most relevant to this study and the important questions that remain unanswered. In detailing the issues within which the conscience rights of certain denominational hospitals are both asserted and opposed, this study includes a presentation of recent developments in both case and statutory law, vii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. pointing out the trends that they appear to signal. A surveywas undertaken to measure the attitudes of hospitals toward the performance of abortions. The findings reflecting, in no small measure, the legal vs. the ethical dilemma. The right of the hospitals to manage their own affairs vs. the right of the pregnant woman to health care where and when she chooses. This study does not attempt to draw conclusions or take sides. It is a presentation of the abortion issue, very much a part of today's world. viii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER I The Contexts of The Abortion Controversies The Supreme Court decisions of 1973» subject of the next chapter, were a historical and radical liberalization of this country's legal attitude on the abortion issue. These rulings gave constitutional protection to the broad (though qualified) right to self-determinatiori that a pregnant woman and her physician might have in this matter. At the same time they severely limited any restrictive interventions that a public authority or health facility might impose upon the exercise of this right. In 1975» two years later, the Boston, Massachusetts trial of Dr. Kenneth C. Edelin, charged with manslaughter in the death of an aborted fetus, gained national attention. The persistent though inaccurate^ characterization of this case as an abortion trial, the interest that it generated and the emotional responses to Dr. Edelin's conviction, all testify to the intense feelings that this question con­ tinues to arouse among adherents of either side of the issue. This phenomenon is due in great part to the fact that legal formulations concerning abortion have often been the product of religious belief on the subject. While the Court treated this question only from a "neutral" medical perspective, previous codifications had been more 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. reflections of a particular society's theological position than its medical insights. The Confliction Theological and Legal Positions For purposes of "background, the two opposing value systems which have been most influential in effecting legal formulations should he sketched. Both positions are composite of interrelating historical, cultural, ethical and medical variables and are far more complex than this summary attempts to picture. The Traditional Position Those who advocate restrictive legal injunctions on abortion by society and the state are likely to enunciate their position in terms of traditional theological princi­ ples. This "position" is by no means univocal; there are several degrees of conservatism in establishing what is morally acceptable, each the result of diverse religious and sociological factors. The traditional belief is actually a composite of two separate doctrines developed from Natural Law theory. They involve beliefs about the life of body and soul (the Sanctity of Life) and teachings about killing and selfdefense (the Right to Life). Proponents of the "Sanctity of Life" understand life, that is to say literal human existence, to begin at the actual moment of conception (or, in variations, at a point soon thereafter). They regard the new aygote as Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 3. genetically complete, a separate entity which from the very beginning neither requires nor receives anything further from its mother other than substenance and protection. In contrast with the modern position, humanity is viewed as related to existence, not to viability. There­ fore the rights and protections of life are assigned to the fetus at the initial potentiality for personhood, not with its later capacity for independent living. The second operational principle underlying the traditional approach to abortion deals with self-defense (the Right to Life). It too has differing degrees of in­ terpretation and strictness. Historically, killing on behalf of the common good (e.g., war, capital punishment) has been regarded as entirely distinct from and much more easily justified than any questions of killing which in­ volved only individuals. Generally speaking, it has been considered intrinsically evil to kill another person (and thus murder) except if that other were an unjust aggressor and if the defender did not intend to kill but only "allowed" such indirectly in the process of his self-defense. This teaching can be applied to the abortion proce­ dure. If a fetus is regarded as having real (or potential) humanity from the very beginning, it should also have claim to all the protections (in this case, from death) that morality and society assign to every person. A more con­ servative version of this position denies unjust aggression Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. by any fetus in any case. The fetus is seen as invariably innocent (in intent); at worst it is a common victim with its mother (rather than perpetrator) of biological mal­ function which may endanger them. Thus any lethal intervention, even on behalf of the mother's life, is viewed as an e/il when it involves the intentional, direct killing of an innocent fetus. Until recent years a more liberal variation has been the basis for most statutory law on the subject. It proposes that a mother may find it necessary to defend her life against the threat of a fetus whose presence, by force of the circumstances of the pregnancy, constitutes an act of unjust aggression. Later modifications extended this act of self-defense to include the defense of goods equiv­ alent to life, especially physical health; later still it included mental well-being. In this view, an abortion per­ formed to save the life (or its equivalent) of the mother is a necessary act of self-defense. Thus, as a morally acceptable act, it should also be a legal one. The Modern Viewpoint Some of the elements contributing to the emergence of a contrary view of abortion are developments in the secularization of law, a significantly liberal evolution of theological positions, and a general shift of focus of con­ cern from the well-being of the fetus to that of the mother. Scientific, cultural, psychological and philosophical Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 5* factors have also made their contribution. The scientific spirit is impelled to dismiss philosophical considerations and instead would place the moment of life only at a point which is tangible and veri­ fiable, namely, at the point of self-subsistence or independent life. The Justices of the Supreme Court articulated this view when they chose not to decide, as a matter of law, when life begins. We need not resolve the difficult questions of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at a consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.3 Sociological and psychological interests have con­ tributed to a cultural milieu in which men are given to reassessing the meaning of life, or better, what it is that makes life meaningful. One dimension of this concern is the current conviction that material justifications for abortion go far beyond survival. In the Bolton decision the Supreme Court adopted as its own the ruling of the trial court. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors -- physical, emotional, psycholo­ gical, familial, and the woman's age — relevant to the well-being of the patient. All these factors relate to health. This allows the attending physician the room he needs to make his best medical judgment. Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 6 And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.^ Similarly, contemporary philosophical life views enhance different, sometimes opposing, values than those of natural law theories. For one thing, they would grant priority to the well-being of the existential, the already developed life of the mother, even to the point that it might be deleterious to relatively undeveloped fetal life. For another, civil law is less inclined to be seen as the embodiment of society’s ethical values and is viewed more as an effort to maximize individual rights and options. The modern view is then in direct conflict with the traditional on almost .every point of substance. * For the former, the sanctity of incipient life is simply a philo­ sophical hypothesis until some point during the third tri­ mester; a certifiable presence of life can only begin with the end of symbiosis. Likewise, a fetal right to life can­ not begin to assert itself until the time of its viability during the last trimester, and even then, its existence must be subservient to its mother's general welfare. In a delineation of the rights of physicians in this matter the Justices have summarized the fundamental assumption under­ lying this position. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 7. The Freedom of Conscience Question The preceding analysis intended to abstract and to contrast the more substantive elements of two abortion positions. They are hardly reconcilable, whenever the essentials of one viewpoint are incorporated into law, the civil and conscience rights of proponents of the other are jeopardized or thrown into delicate balance. The factual situation of recent generations made clear the consequences for the abortion seeker of relative­ ly restrictive legislation. Since 1973 the dilemmas of compliance with law have been transferred to adherents of the traditional position. This section outlines two signi­ ficant theological teachings that underly the problems of law for those who oppose abortion in the new legal environ­ ment. It deals with the central importance of abortion teachings in the hierarchy of ehtical values and touches upon questions of morality which arise from cooperation in this procedure. The Special Status of Abortion Moral teachings may be expressed in positive or negative formulations; one is expected to do some virtuous thing or one is enjoined not to perform some evil act. Because of the semantics of language, negative formulations are necessarily more concrete and absolute. That is, the performance of a prohibited act is ipso facto regarded as a violation, and moral culpability is attributed to the Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. a agent as well as to his action. Finally, in the hierarchy of prohibitions, some injunctions are considered "observances" or "counsels", others are, according to be­ lief, minor (venial), major (mortal), or even excommunicable evils. For many who have religious objections to abortions, their beliefs on the matter are understood in terms of pro­ hibitions that are negative, automatic and at the very core of the value system. That is to say, no one may ever participate in an abortion, the mere performace of such an act is automatically presumptive of both objective evil and subjective guilt and is a violation serious enough to deserve expulsion from the relgious community. It has been a broad objective of the pluralistic American society that special interest groups not impose their ethical systems upon others; only mandates related to the civil and common good are to be held binding on all men. While this has been generally and increasingly respected over the years, important religious values (prohibitions) of some denominations have become the law for all men, despite belief. Thus, for example, no man may be poly­ gamous, some locales may not sell liquor, few men may gamble without statutory restraint. Importantly, these laws have had the effect of compelling at least external observance from even "unbelieving" fellow citizens. The underlying rationale has been that certain moral evils are forbidden Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 9 to man as man as well as man as religious, and thus to society as a whole. Today, almost uniquely, a sizeable minority of citizens believe it is necessary to enforce an abortion ethic through legal sanctions. Proponents of the tradi­ tional view, even given a high level of tolerance for the freedoms of others, remain convinced that fetal existence and fetal rights must be given the equal protection of the law. The proscription of abortion as a criminal act is the optimal goal of the traditional position, a civil mandate requiring cooperation in such a procedure would be the ultimate evil. The Question of Cooperation In its application to the civil sphere, abortion shares a further characteristic with a select number of important moral issues. Under the principles of pluralism and freedom of religion men have grown accustomed to tol­ erate and even promote for their fellow citizens the legalization of modes of behavior which they themselves find morally objectionable. In spite of this, and espe­ cially with core issues, they also feel compelled to avoid any significant cooperation or participation in such acti­ vities despite their legality. Such non-participation applies equally to individuals and institutions. In the matter of abortion, for example, both individual physicians Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and nurses of certain religious persuasion,as well as denominational hospitals of the traditional viewpoint, will feel obliged not to participate in an act immediately con­ nected with abortion in spite of any license the law may allow or promote for others. The abortion question has thus come full circle. A generation ago the procedure was a criminal offense and controversy centered on the exercise of freedom of con­ science (religion) for those who wished abortion. Currently, abortion is not only protected legally as a constituional right, it is also mandated as a health ser­ vice to be offered by certain institutions. The conscience problem is likewise reversed, if abortion is a constitu­ tional right for all. The question arises whether some individuals, or any health facility, might refuse to cooperate in making that right effective by reason of their own demands of conscience. 1 2 The Edelin case was tried in 1975. Boston, Mass., and resolved not on the question of abortion’s licety, but on what might have been done to a viable fetus after a legal abortion had occurred. Several words with interpretive potential will be used in the course of this paper, e.g., traditional, modern, conservative, liberal, etc. In the context of this study they are intended to be only descriptive, without any evaluative connotation. 3 Roe vs. Wade, 93 Sup. Ct. 705 (1973) ^ Doe vs. Bolton, 93 Sup. Ct. 739 (1973) Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER II The Supreme Court Decisions Until a more significant ruling is handed down by the United States Supreme Court, its decisions of January 22, 1973 will be considered the reference points for future discussions about most of the legal aspects of the abortion question. On that day the Court, in separate cases, struck down dissimilar statutes from two different states. Howr- ever it instructed that its opinions in each case be con­ sidered in tandem as providing a broad constitutional formula for dealing with the issues involved. The purpose of this chapter is to review the Court's decisions from two perspectives. First, it is appropriate to summarize the general highlights for those rulings in order to establish the context of this discus­ sion. Second, those special elements cf the Court's decisions which are applicable to this study will be ab­ stracted and developed. The Two Decisions 1. Roe vs. Wade^ found invalid an older type restrictive criminal statute of the State of Texas which limited occasions for abortion to saving a mother's life. The Court held such statutes unconstitutional and violative of a woman's fundamental rights. Some of the 11 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 12 more pertinent 'rulings of the Court in its rather lengthy opinion on this case follow. a. A. mother and her physician have a consti­ tutional right to decide whether or not to terminate her pregnancy. b. However, this right is not absolute; at certain compelling points it is subject to important and legitimate interests of the state. c. On the otherhand the state may not indiscriminately restrict abortions to specified circumstances and/or conditions without regard to the stage of pregnancy. d. During the first trimester the rights of the pregnant woman are pervasive and are not subject to any special regulation by the state. e. At the end of the first trimester a compelling point is reached at which the state may have a legitimate interest in regulations pertaining to maternal health. f. Between the first and third trimesters a state may regulate only concerning Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 13' the abortion procedure (not the fact) and only to the extent that such interventions relate to maternal health. g. State interests grow in substantiality as a woman approaches term. A second compelling point takes place at viability when the fetus is assumed to have achieved the capability of meaningful life out­ side the womb. h. The Court observes that viability is usually placed at about twenty-eight weeks but may occur earlier, even at twenty-four weeks. At this second compelling point during the third tri­ mester, the Court rules that: "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the . mother." 2. Doe vs. Bolton^ the Court held invalid parts of a more recent, less restrictive statute of the State of Georgia which imposed residential and certain procedural requirements as conditions for abortion. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 14 It made reference to the basic enabling principles set forth in Roe vs. Wade and then went on to make several rulings relevant to this more liberal statute. a. Georgia's residency requirements limiting abortions to state residents was ruled unconstitutional since it could not be shown to be related to the legitimate interest of the state and it violated the constitutional right to travel. b. The Court found three procedural statutes, requiring (1) that abortions be performed only in Joint Commission on Accreditation of Hospitals accredited hospitals, (2) that the attending physician's judgment be confirmed by two other licensed physicians, and (3) that abortions be approved by the hospital's medical staff abortion committee to be constitutionally defective. In each instance it found the requirements to be unreasonable and over broad infringe­ ments of the patient's stated rights, and/or the physician's right to practice in that Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 1-5 such procedure did not relate to the particular medical problems of the abortion operation, c. The Court sustained a lower court's approval of the Georgia statute's language requiring a physician to use his best clinical judgment since its intent was for the benefit, rather than the disadvantage of the pregnant woman. The Rights at Issue In both cases the Supreme Court made rulings or enunciated principles which are particularly pertinent to the question of an individual or an institution.refusing to participate in an abortion. These statements are basically propositions about various rights which the Court seeks to assert, guard and/or deny as they interact with each other. Right of Privacy The fundamental enabling right cited in Wade is the constitutional right of personal privacy as embodied in the l^th Amendment. The Justices make no special ap­ peal to the mother's freedom of conscience. The Court is thus clearly ruling that the abortion decision, at least in the earlier stages, is not a matter of values in conflict Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 16 where one right (or conscience) must he given precedence over another right (that of the fetus, the state, etc.). The Gourt confirms this view more explicitly in its repeated reference to the abortion decision as a medi­ cal question. It regards the choice of whether to bring to term or to terminate a pregnancy as essentially two sides of the same coin. In the Bolton opinion abortion is seen in principle as not unlike any other medical or surgi­ cal procedure. The thrust of this viewpoint is that the mother (and her physician) have specific rights, that there are no contravening rights or interests at certain stages, and, thus, there are, presumably, some persons and institutions with the responsibility for making possible the free exercise of such rights. Fetal Rights The Court declined to participate in the debate about when life (and hence personhood, humanness) begins.? Instead it shaped its opinions in terms of viability. For legal purposes, prior to viability the fetus is regarded as a non-person; after viability a state might show a legi­ timate interest in potential life. There are three important points involved here. While the state may indicate an interest in the health of the mother after the first trimester, the status of the fetus prior to viability is completely irrelevant. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 17 Second, the Court does not mandate restrictive regulations by the state on behalf of the fetus at any stage, it merely permits a limited intervention at the point of viability. Third, even in the final stages of pregnancy, the state is viewed as having no legitimate interest in the decisions arising from conflicts between maternal health and life and the continued existence of the fetus. (It should be noted that health is broadly interpreted and includes also the various components of mental health.) The impact of these rulings can be concretely ex­ pressed in the following question. If a pregnant woman has certain constitutional rights to a procedure which is viewed as a medical need, if the fetus in question is a juridical non-person, and if this matter is of such little import that the state is free to show legislative indifference at all stages of pregnancy, should not a health facility which is equipped to service such rights and needs also be required to do so? The Right to Refuse The question, of course, leads directly to the sub­ ject of this study. That is, whether physicians, other health professions and/or equipped health facilities should be required to perform an abortion, or to participate in such a procedure by reason of statutory or case law. In the Bolton decision the Court provides a general guideline to its own intent in this matter. In that case Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. it specifically cites with approval the language of the O Georgia statute0 , which reads: Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of per­ forming an abortion, nor shall any hospital be required to appoint a committee... a physician, or any other person who is a member of, or associated with, the staff of the hospital, or any employee of a hospital in which an abortion has been authorized, who shall state, in writing, an objection to such an abortion on moral or religious grounds, shall not be re­ quired to participate in the medical procedures which result in the abortion, and the refusal of any such persons to participate therein shall not form the basis of any claim for damages on account of such refusal, or for any disciplinary or recriminatory action against such person. However, even given the liberality of the Justices approval of a "conscience clause", it still remains that the right to refuse to perform an abortion is far less clearly amplified than the right to have one. The license to decline participation in such procedures is almost an aside in a document which is substantially devoted to the power of the state itself to regulate or prohibit the per­ formance of abortions. Publicly-owned hospitals are a case in point. The Wade and Bolton decisions restricted the state from inter­ fering in the right to privacy of a pregnant woman. Sub­ sequently a number of suits have been filed against govern mental hospitals to require them to provide this service. The lower courts have been virtually unanimous in ruling that governmental hospitals may not set roadblocks in a Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. woman's exercise of this right by limiting the use of pub­ licly-owned health care facilities. In 197^* "the Supreme Court confirmed that such thinking was in conformity with its previous equation. It denied a writ of certiorari in a case where a lower federal court had ordered a municipal hospital to open its facilities for voluntary, induced abortions.^ The Supreme Court rulings of 1973 and 197^ could also have some impact upon health professionals who might » refuse to participate, or directly cooperate, in an abortion procedure by reason of religious beliefs. However, there has been no significant challenge on these grounds to this point. Further, given American law's propensity to enhance personal and individual freedoms, it seems unlikely that a court would compel a physician, or nurse, to participate in an abortion against their beliefs. The principal unresolved question is the impact of the Judiciary's thinking upon the voluntary, non-profit denominational hospital. (For our purposes in this matter, proprietary hospitals may be regarded as private businesses offering only restricted and selective services, without any intent of all-embrasive public service.) For some voluntary hospitals the Court's decisions are a legal relief. They enable an institution to offer, without legal consequence, whatever it is philosophically and medically prepared to do. However, those voluntary hospitals whose principles forbid the performance of such Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 20 procedures face a dilemma which has yet to be resolved. There are several issues concerning the legal status of these institutions and the contravening rights of pa­ tients which are being raised and/or tested in the courts. The details of these challenges follow. They are often being settled on a case-by-case basis until a construct of law, or a further decision by the Supreme Court determines the conditions and the priorities that govern institutional exercise of the conscience clause. 5. Roe vs. Wade, 93 Sup. Ct. 705(1973) 6 . Doe vs. Bolton, 93 Sup. Ct. 739 7- (1973) -Cf Quotation, p. 5 8 . Georgia Statute, #26-1202(e) 9- Nyberg vs. City of Virginia, 9^ Sup. Ct. 192 (197^) Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER III The Conscience Clause Issues There are a half dozen issues which either indivi­ dually or in tandem, provide the bases upon which voluntary hospitals have already been tested or are potentially vulnerable. This chapter develops some of the principles involved in the more controverted areas and presents some of the significant case law decisions of the past two years on the subject. The first section covers the two most prominent challenges to private hospitals and some rulings that have been rendered thus far. The second section pre­ sents four additional issues which could be problematic for voluntary hospitals. The Principal Source of Challenge State Action The "State Action" concept is founded upon the principle that the receipt of substantial governmental bene­ fits (in the form, for example, of grants, loans, payments) by a private corporation transforms its character into a quasi-public institution with its consequent obligations to public service. Case law has determined, at least on some constitutional issues'^0 that the significant investment of public monies in private entities has the effect of making them instrumentalities of the state, or at least so related and connected with the state, by reason of receipt of such 21 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 22 funds, as to be equivalently involved in state activities. It is common knowledge that most voluntary hospitals have been recipients of public funds from Hill-Burton grants, the floating of tax exempt bonds and/or the acceptance of public assistance monies in the form of Medicaid or Medicare payments. During 197^ there were several challenges to hospi­ tals on the basis of this principle, in matters unrelated to abortion. A United States District Court ruled that the receipt of large sums of Medicaid and Medicare monies did not convert a non-profit, private institution into an entity subject to governmental action . ^ Similarly, a federal district court in Oregon denied a State Action argument against a hospital which had accepted Hill-Burton funds and had used a state industrial bonding mechanism to issue tax exempt bonds. It did so on the basis that this type of argument could conceivably find some degree of state involve­ ment in virtually every major private institution existing today . ^ In a labor related case, a majority opinion of the Commonwealth Court of Pennsylvania held that Medicaid and Medicare payments were made to individual patients and not to the hospital; consequently, they did not affect or change the nature of the hospital. 13 J There were also State Action appeals specifically on the abortion issue. The New Jersey Superior Court, in Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 23 October 197^, ruled against a joint claim by several preg­ nant women who sought to force three private hospitals to 1^ provide abortion facilities on the basis of State Action. This decision had some interesting elements: a. The hospitals in question were nonden ominational . b. In the course of rejecting the State Action arguments, the Superior Court did agree to review the matter under a New Jersey State Doctrine of "charitable trust." It also found no abuse by the hospitals of this principle. c. One of the persuasive considerations in its ruling favorably for the hospitals was that there were alternative sources of abortion care within relatively short distances. Subject, of course, to future Supreme Court review, the State Action aspect of this question appears to be ap­ proaching definitive resolution in favor of denominational hospitals. The recently enacted federal Health Program Extension Act1-^ prohibited any court from finding that the receipt of Hill-Burton, or certain other public funds, required a hospital to make its facilities available for abortions. It is to be noted that the language of this Act was subsequent to, and cognizant of, the 1973 Court rulings. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 2^ The pertinent section is #*K)l(b): #K>1(b) The receipt of any grant, contract, loan, or loan guarantees under the Public Health Service Act, the Community Mental Health Centers Act, or the Developmental Disabi­ lities Services and Facilities Construction Act by any individual or entity does not authorize any court, or any public official, or other public authority to require: (2) such entity to— (a) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral con­ victions ... The Act also provides protection for the individual in section #^01(c): #Wl(c) No entity which receives a grant, contract, loan or guarantee under the Public Health Service A.ct, the Community Mental Health Centers Act, or the Developmental Disabi­ lities Services and Facilities Construction Act after the date of enactment of this Act may— . . . (2) discriminate in the extension of staff or other privileges to any physician or other health care personnel, because he performed or assisted in the per­ formance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convic­ tions respecting sterilization procedures or abortions. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 25 On the basis of this law a federal district court in Idaho rejected the suit of a physician who had been denied reappointment to a denominational hospital for refusing to agree to abide by its non-abortion policies.^ The court made three points s 1. A voluntary hospital may refuse its facilities for abortion procedures on religious grounds without adverse legal consequence, 2. A physician's personal belief in abortion or his performance of that procedure at another facility may not influence any consideration of his right to privileges in an anti-abortion hospital, 3. An individual physician who has religious objections to abortion can not be penalized for refusing to participate in such a procedure in a pro-abortion or public facility. The materials contained in the exhibit attached to the case are worthwhile reading. They are original source distrib­ utions by a group which has the expressed objective of modifying the abortion exemption granted to private hospi­ tals. It will be noted that a principal focus of that challenge is the State Action doctrine. It may be that the Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 26 distinction between agencies of the state, which are obliged to offer abortion services, and other institutions which are so funded (Hill-Burton) and supported (Medicaid, Medicare) by the state that their action has the color of state action, is so fine that it will have to be clarified and delineated by a Supreme Court determination. Conscience It was noted in the previous chapter that the Supreme Court gave its approval to the Georgia statute which legitimized the right of a hospital or individual to refuse participation in an abortion on moral or religious grounds. None the less, the freedom of conscience prin­ ciple, and its relevance to the abortion issue, remains under test. A significant case law commentary on the subject was rendered by the Seventh Circuit Court of Appeals a few months after the Supreme Court decisions. 17 ' Ruling that a private hospital could not be compelled to allow its facilities to be used for abortion procedures, the Court analyzed the conscience question from two different per­ spectives. First, it attached a great importance to the fact, that the Supreme Court had permitted the conscience clause of the Georgia statute to remain intact, even though it was directly attacked by one of the amicus briefs in the case. Second, it ruled that even the absence of a Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 27 statutory conscience clause (in a particular state) would not adversely affect the rights of a private hospital. On the latter point the Court reasoned that neighter a neutral state policy (i.e., the absence of a conscience clause), nor a hospital's acceptance of governmental funds were sufficiently persuasive to justify the conclusion that a voluntary hospital had either surrendered its rights as a private institution, or become obligated to observance of all mandates affecting public facilities. In effect, the Court affirmed that neither state policy (or its absenae), nor governmental assistance when considered alone, are sufficient to constitute State Action obligations of the type ruled unconstitutional by the Supreme Court. In another ruling an Appeals Court refused to issue an order reversing a decision against a plaintiff seeking a sterilization procedure in a denominational •I O hospital. It declined to intervene on the basis that its considerations woul be unconstitutional interference in the right of the hospital's sponsor to the free exercise of religion. Finally, within the last three of 197^ a United States Court of Appeals twice upheld the right of a deno­ minational hospital to refuse the use of its facilities IQ for contraceptive sterlilization. ^ In the course of its opinion the Court specified that abortion procedures were correspondingly covered by the principles on which its Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. opinion was founded. The Court rejected a State Action argument; it contended that any regulatory requirements which forced an objecting religious hospital to allow sterilization and abortions as a pre-condition for receipt of federal benefits would violate constitutional protection of the free exercise of religion. This decision hasspecial relevance in that the Court chose to develop the freedom of relj-gion argument as its basic rationale for ruling in favor of the hospital. It cited the 1973 federal "conscience amendment", cited above on , as the reason for its lack of power to compel the disputed sterilization. The Court interpreted the real intent of Congress to be, "...to protect the freedom of religion of those with religious or moral scruples against sterilizations and abortions." The freedom of conscience question, despite its long history, continues to be a controversial one. For example, in 197^ the Maryland Court of Appeals, in up­ holding a statute on the Sunday closing of retail stores, ruled that corporations are artificial as opposed to natural persons, hence they do not have a First Amendment right to free exercise of religion and must remain neutral on that 21 subject. While this opinion was not addressed to a non­ profit corporation, a religiously-oriented institution, or the abortion issue, it is evident that an analogy is capable of being drawn. It may be anticipated that the Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 39 Supreme Court will have to provide its clarifications to the broad, complex question of the freedom of conscience, and, specifically, how it affects denominational hospitals on the abortion issue. 22 Potential Challenges The Right to Treatment The constitutional right of a patient to demand treatment for any medical condition is still evolving in the judicial forum. Of late, the provision of Emergency Room services has been considered presumptive of a hospi­ tal's willingness (and thence, responsibility) to offer its facilities to the public at large, without discrimi­ nation. It remains to be determined whether this implicit invitation necessarily includes every service and procedure for which the facility is equipped. Therefore, it remains to be definitively established whether a woman who has been confirmed in her right to an abortion also has an enforce­ able right to require an institution, which offers itself to the public for comprehensive medical care, to render such service. The question is posed in terms of the right to medical care; the solution will be found in the priorities the law chooses in resolving a clash between the competing rights of a pregnant woman and those of a hospital to manage its own affairs. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Geographically Isolated Hospital The right to treatment problem becomes more acute when it involves a denominational facility that is the ex­ clusive provider of medical services to a community. As already noted, in the Bolton decision the Justices over­ turned the residency requirements of a Georgia abortion statute and promoted the right of a pregnant woman to an abortion without geographical restraints. Subsequently, a New Jersey Superior Court, in rejecting a State Action claim against three hospitals, noted that it was influenced toward its conclusions by the availability of nearby abortion services (Cf. p. 23, F. 1^). In this instance, the greatest distance between the abortion facility and the defendant hospitals was thirty to thirty five miles. Extraneous federal regulations are contributing to a siatuation that will eventually force this issue into the courts for further definition. On the one hand, the Department of Health, Education and Welfare 21 J has charged each state's health planning agencies to delimit with in­ creasing intensity the number of health facilities and services in their respective geographical and population areas. The stated objective is to eliminate any dupli­ cation and to establish high quality, comprehensive and centralized medical centers. On the other hand, the l^th Amendment guarantees to each person equal protection under the law. Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 31 Inevitably, it will have to be determined whether a private denominational health facility upon which a specified population must depend for the totality of its medical services, remain free to be selective in the choice of those services which it is equipped to supply. State Law It has been observed that the Supreme Court did not mandate abortions. Neither has it required states to inter­ vene by the promotion of such procedures. However, it did direct each state to modfy or eliminate those regulations which are not in compliance with its own determinations. In this transition some local statutes might well concede to women an unqualified right to abortion services. With the Court’s constitutional assurance of the pregnant woman's right to abortion, it is not inconceivable that state legislation may seek to guarantee that right by denying any suitable health facility the prerogative of refusing such service. Such a directive could claim authority in the fact that it goes beyond, but not contrary to, the 1973 decisions. Hospital By-Laws Whether it was a critical matter in the Court's view or not, one of the conditions of the Georgia conscience clause to which it gave its approbation was a requirement that abortion objectors state, in writing, their rejection Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 32 of such procedures on moral or religious grounds. It may he conjectured whether, in a judicial test, a court would he willing to acknowledge an institution's claim of privi­ lege because of its denominational affiliation, rather than because of a prior corporate statement of religious objec­ tion. Presumably most facilities having a preference in this matter have already introduced into their corporate by-laws language which binds the facility and its personnel to its specific medico-moral principles. There appears to be at least some susceptibility to litigation for those who lack a definitive by-law statement of religious or moral objection to abortion. This defect could prompt judicial skepticism about a particular insti­ tution's fundamental commitment to a religious belief in this matter. 10. For example, labor law for aiillective bargaining purposes. 11. Slavcoff vs. Harrisburg Polyclinic Hospital, 375F Supp. 999 (U.S. District CtT, Pennsylvania, 3-25-7*0 12. Staube vs. Larson, 7^-308 (U.S. District Court, Oregon, 10-7-7*0 Brownsville General Hospital vs. Commonwealth of Pennsylvania, 32 5A, 2nd 662 (Commonwealth C o u r t o f Pennsylvania, 197*0 13. 14. Doe vs. Bridgeton Hospital Association, Docket No. L- 3I989-72 , Superior Court of New Jersey, Law Division IO-7-74 15. Health Programs Extension Act, P.L. 93-45; 42 U.S.C. #291 et seq. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 33 16. Watkins vs. Mercy Medical Center, et. al. , 364- F Supp. 799 (D." Idaho, 1973) 17. Doe et al. vs. Beilin Memorial Hospital, et al. No. 73C 230 (7th Cir 1973) 18. Morin vs. Alexian Brothers Hospital, C-73-0892 (N.D.) 19 . Chrisman -vs. Sisters of St. Joseph of Peace. 72-3087 (C.A. 9, 11-21-75) 20. 52 U.S.C. #501(b); Cf. p. 21. Atlantic Department Stores. Inc. vs. State*s Attorney 323A 2nd 617 (Maryland, 8-9 -7^) 22. The dilemma of a voluntary hospital which is not denominational hut which may decline to participate in abortion for religious or other reasons remains for the most part untested and unresolved. 23 . The Dept, of Health, Education and Welfare is the federal agency which is the final source of authority for all health-related regulations. 2 k Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER IV^ Findings and Implications Attitude Survey Findings A survey was implemented to help determine the attitudes of hospitals in the metropolitan area toward abortion, if they considered abortion procedure a moral issue. It was further hoped that compliance with the law could also be measured. Of the total questionnaires mailed, thirty five (30$) were returned within a week from the date of mailing. It is believed that 20$ response is acceptable for such a study. Perhaps the nature of the questionnaire was the cause for the great response. Question (1) of the questionnaire simply dealt with hospital class. 37$ Not for Profit ^ Not for Profit, Religious 20 57$ 3 6$ Proprietary Questions (2) through(6 ) dealt with hospital attitudes toward abortion. Question (2) had a 72$ "Yes" response, indicating that hospitals believe the decision to perform abortion should be left to the medical field. Questions (3) revealed'that 100$ of the hospitals felt a thorough investigation should precede any per­ formance of an abortion. (This is an indication that 3^ Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 35 hospitals are not in favor of the quick abortion.) Question W brought to light that 71$ of the hospitals responding feel society is making abortion . easy and promoting it. Question (5) revealed that 86$ of the hospitals dealt with abortions outside the usual duties of their hospital. Question (6) revealed that 75$ of those responding were against the Supreme Court rulings of 1973* Questions (7) and (8) were aimed at finding if hospitals actually performed abortions and, if they did, under whatgrounds. Question (7) revealed that 77$ of the hospitals responding believed they have the right to refuse to per­ form abortions if they are not on purely medical grounds. Question(8) followed question (7) by asserting that 77$ of them do not perform abortions except for medical grounds. Questions (9) and (10) attempt to show whether hospitals believe abortion procedure is a moral issue as well as a civil issue, and, in addition, if they do so believe, would they refuse to perform the abortion on those grounds. Question (9) brought 91$ response that abortion is as much a moral issue as it is a civil issue. Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 36 Question (10) however revealed that only 77f o of the hospitals responding agreed that they would reject and refuse to perform an abortion based on moral grounds. A footnote to this survey is that hospital class (not for profit; not for profit, religious; and proprietary) was not a factor in their answers. Summation Whether an individual man regards abortion as a moral question or a medical problem, the fact remains that for men in society it must always be ultimately resolved as a legal issue. The problem is a massive one and in­ volves many dilemmas whose suggested solutions appear to be contradictory rather than simply different. Beyond the concrete elements of any abortion deci­ sion there exists a frustratingly large number of less tangible questions that touch upon the very meaning of man's existence. For example, the "abortion question" directly involves religious questions relating to man's spirit (soul) and the value of his life, both in itself and in conflict with others, its solution depends upon conceptual answers to bio-philosophical questions on just when life really begins and to medical-moral questions as to what he may or should do about its beginnings. While individuals have arrived at answers satis­ fying to themselves, men, as in society, have not. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 37 When answers to questions of value become defined, they are given legal expression in the form of rights. It is the task of statutory and case law to ensure those rights when they are agreed upon by most, and to mediate their exercise when there is endemic disagreement, or when contrary rights are in potential conflict and deprivation. Yesterday the law gave special emphasis to the rights of the fetus to existence and restricted the rights of its mother whenever they were in conflict. Today the courts have ruled that, in effect, the fetus is without legal rights or recourse, and have enhanced the rights of a pregnant woman, subject only to limitations related to her own well-being. Tomorrow the courts will be called upon to mediate another dilemma in which rights are in genuine conflict, the subject matter of this study. They must choose where to place the higher value; on the right of a pregnant woman to have an abortion at the health facility of her choice and/or convenience, or on the right of a voluntary denominational hospital to manage its own affairs within the context of its moral and religious beliefs. This study has attempted to answer these questions by learning how hospitals today deal with the issue. The only conclusion to be drawn is that most hospitals' atti­ tudes are not in favor of the performance of abortion. It was also learned that the majority do not perform Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission. 38 abortions in their hospitals. They maintain that, as previously stated, it is something that must be solved not only in civil courts, but also on a moral basis. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 39 ATTITUDE SURVEY In order to present a true direction of the abortion issue, it was determined that a measure of atti­ tudes of how hospitals treat this issue was necessary. As a result, a survey was implemented. Method A ten-question survey questionnaire was prepared and sent to all hospitals in the metropolitan New York area. One hundred fifty copies of the survey were ran­ domly mailed to all hospitals in the area. A return envelope was enclosed with each questionnaire. (See Appendix A) An instruction sheet accompanied the questionnaire. This sheet described the purpose of the study and instruc­ tions for completing the form. Purpose There were three purposes to the study. To deter­ mine attitudes toward the performance of abortions. In addition, it was aimed at discovering if hospitals in the area are actually performing abortions, in compliance with the law. And, finally, to learn if hospitals felt that abortions were also a moral issue. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The instructions for completing the questionnaire included: 1. Please answer all questions. 2. Please respond according to the attitudes of your hospital. 3. The respondent was asked to identify his facility by hospital class. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. APPENDIX A QUESTIONNAIRE 1. What type of Hospital is your facility? Not for Profit___ Not for Profit, Relgious___ Propri etary___ 2. Do you think the hospital should decided upon the abortion? 3. Yes No___ Do you think a careful investigation should precede the abortion? Yes No___ Do you think society makes it easy and also promotes the use of abortions? 5. Yes No___ Does your hospital consider the performance of abortions in line with the other duties of the hospital? Yes 6. Are you in favor of the 1973 Supreme Court Rulings on abortions? 7. No___ Yes No___ Do you think your hospital should have the right to refuse to deal with abortions, if it is against their moral beliefs? Yes 8. Does your hospital perform abortions, excluding those for medical reasons? 9. No___ Yes No___ Is abortion a moral issue as well as a civil law issue? Yes 10. Do you consider abortion purely medical ground? No___ reputable if it is not on a Yes No___ permission of the copyright owner. Further reproduction prohibited without permission. [...]... concerning the legal status of these institutions and the contravening rights of pa­ tients which are being raised and/ or tested in the courts The details of these challenges follow They are often being settled on a case-by-case basis until a construct of law, or a further decision by the Supreme Court determines the conditions and the priorities that govern institutional exercise of the conscience clause. .. permission of the copyright owner Further reproduction prohibited without permission 7 The Freedom of Conscience Question The preceding analysis intended to abstract and to contrast the more substantive elements of two abortion positions They are hardly reconcilable, whenever the essentials of one viewpoint are incorporated into law, the civil and conscience rights of proponents of the other are jeopardized... Law theory They involve beliefs about the life of body and soul (the Sanctity of Life) and teachings about killing and selfdefense (the Right to Life) Proponents of the "Sanctity of Life" understand life, that is to say literal human existence, to begin at the actual moment of conception (or, in variations, at a point soon thereafter) They regard the new aygote as Reproduced with permission of the. .. legal one The Modern Viewpoint Some of the elements contributing to the emergence of a contrary view of abortion are developments in the secularization of law, a significantly liberal evolution of theological positions, and a general shift of focus of con­ cern from the well-being of the fetus to that of the mother Scientific, cultural, psychological and philosophical Reproduced with permission of the copyright... psycholo­ gical, familial, and the woman's age — relevant to the well-being of the patient All these factors relate to health This allows the attending physician the room he needs to make his best medical judgment Reproduced with permission o f the copyright owner Further reproduction prohibited without permission 6 And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.^... natural law theories For one thing, they would grant priority to the well-being of the existential, the already developed life of the mother, even to the point that it might be deleterious to relatively undeveloped fetal life For another, civil law is less inclined to be seen as the embodiment of society’s ethical values and is viewed more as an effort to maximize individual rights and options The modern... I The Contexts of The Abortion Controversies The Supreme Court decisions of 1973» subject of the next chapter, were a historical and radical liberalization of this country's legal attitude on the abortion issue These rulings gave constitutional protection to the broad (though qualified) right to self-determinatiori that a pregnant woman and her physician might have in this matter At the same time they... in the l^th Amendment The Justices make no special ap­ peal to the mother's freedom of conscience The Court is thus clearly ruling that the abortion decision, at least in the earlier stages, is not a matter of values in conflict Reproduced with permission of the copyright owner Further reproduction prohibited without permission 16 where one right (or conscience) must he given precedence over another... Further reproduction prohibited without permission 3 genetically complete, a separate entity which from the very beginning neither requires nor receives anything further from its mother other than substenance and protection In contrast with the modern position, humanity is viewed as related to existence, not to viability There­ fore the rights and protections of life are assigned to the fetus at the. .. of the copyright owner Further reproduction prohibited without permission CHAPTER III The Conscience Clause Issues There are a half dozen issues which either indivi­ dually or in tandem, provide the bases upon which voluntary hospitals have already been tested or are potentially vulnerable This chapter develops some of the principles involved in the more controverted areas and presents some of the ... Conflicting Theological and Legal II Positions The Traditional Position The Modern Viewpoint ^ The Freedom of Conscience Question The Special Status of Abortion The Question of Cooperation The. .. 1977 Reproduced with permission of the copyright owner Further reproduction prohibited without permission Abstract of the Thesis ABORTION AND THE CONSCIENCE CLAUSE ■by Richard John Sinni Master... measure the attitudes of hospitals toward the performance of abortions The findings reflecting, in no small measure, the legal vs the ethical dilemma The right of the hospitals to manage their