New hope for conscience protection
April 18, 2019
In the heels of this summer’s Fortnight for Freedom, an Illinois federal court handed down a major victory for religious freedom in America. This is a story worth knowing about. It is a testament to the power of prayer, and a declaration of the rights of health care professionals against immoral mandates by the state. And it gives hope to ongoing efforts to protect the conscience rights of psychologists, therapists, and counselors in Nebraska.
In the early aftermath of Roe v. Wade, numerous states – including Nebraska – passed laws protecting pro-life doctors from being forced to perform or even refer for abortions. In 1977, the Illinois Legislature enacted the strongest conscience law in the country, known as the "Health Care Right of Conscience Act." It protects all health care professionals in Illinois from being forced to "participate in any way in any particular form of health care services contrary to his or her conscience."
In 2016, however, the Illinois Legislature turned its conscience law upside down. It enacted an amendment stating that conscience protections apply only if health care entities and professionals adopt "protocols" stipulating that they will inform patients of all of their "legal treatment options." In addition, they must be willing to refer patients to – or provide written information about – other health care providers who they "reasonably believe" would offer the immoral health care service.
Thankfully, numerous pro-life physicians and pregnancy resource counselors quickly filed lawsuits in state and federal court. And the results have been a sign of hope in these otherwise stark times.
The first win came in state court in December, just days before the unconscionable mandate was to take effect (New Year’s Day, 2017). There, the state judge ruled that freedom of speech requires striking down the Illinois amendment as applied to the pro-life challengers.
More specifically, the judge ruled that the law appears to target those with pro-life views (because "protocols" are demanded only of conscientious objectors), and it mandates speech on a politically salient topic – that is, the morality of abortion. Such speech calls for the greatest protection under the First Amendment and is thus immune from anti-life dictates like the one handed down by the Illinois Legislature in 2016.
The second win came in late July, this time in Illinois federal court. Federal District Judge Frederick Kapala held for the pro-life plaintiffs for very similar reasons, ruling that the new law targets conscientious objectors and burdens politically sacrosanct speech.
Judge Kapala stated that those who recognize that abortion harms both the child and the mother cannot be forced to say that abortion is a legitimate "treatment option," nor can they be forced to refer patients to abortionists who will carry out these harms. There are also far less restrictive ways for the state to disseminate information about abortion than turning pro-life clinics into de facto advertisers for abortionists, he said.
While these judicial victories have immediate application only to the topic of abortion, they set the stage for total abrogation of the Illinois law – and for stopping similar attacks on conscience here in Nebraska.
In recent years, various special interest groups in Nebraska have become adamant that any psychologist, counselor, therapist, etc., with a conscientious objection to providing certain services – that is, counseling in furtherance of a same-sex domestic partnership, or therapy to assist a patient in "transitioning" to the opposite sex – must be willing to refer the patient to someone the counselor knows will provide those services.
The Nebraska Catholic Conference has thus far been successful at keeping this attack on conscience out of state regulations, despite the increasingly public hostility of various advocates in recent months. The Illinois victories give new life to this most difficult defense.
Like the nefarious law in Illinois, any Nebraska policy mandating referrals for same-sex couple’s therapy or gender transition counseling targets those with a Judeo-Christian understanding of sex and sexuality, and mandates speech on one of the most politically salient topics of our times – that is, the morality of same-sex marriage and the concept of gender identity. And in this age of information overflow, conscientious counselors cannot be turned into de facto advertisers for services they believe to be fundamentally immoral.
Indeed, the Illinois victories are a sign our prayers are working. And they give new hope to our efforts to defend the rights of conscience in Nebraska.
Tom Venzor is executive director of the Nebraska Catholic Conference, with headquarters in Lincoln. Contact him at email@example.com.