While the religious right broadens its campaign to undermine reproductive freedom, what’s left of the left prefers to repeat history.

By Kathryn Joyce

Commercial: Cameras open on a young father (Caucasian or light-skinned Latino; attractive but not handsome: an Average Guy) sitting in the driver’s seat of a well-kept car parked in the lot of a suburban pharmacy. The father wears a work shirt (the Honest Working Poor) and seems tired but affable as he turns to smile at his baby, strapped in a car seat in the back. The father checks his watch, then turns to look at the pharmacy doors. Cut to inside the store, where the young mother (pretty, modestly dressed) stands cowed before a white-coated pharmacist who shakes his finger at her in slow motion. The woman’s shoulders slump and she stares at a piece of white paper, her prescription, in his hands.

Cut to car, where Father looks up expectantly from Baby as a distressed Mother opens the door and gets in. Father’s face registers concern, then anger, then defeat as he listens to Mother explain. Both parents look up as the pharmacy lights go out and an employee locks the front door. Father checks his watch. Baby starts to cry.

Are you moved? Compared with opinions you may have held before, how do you feel now about a situation in which a woman is denied a birth control prescription because of the beliefs of the pharmacist on duty? What, if any, is the pharmacist’s transgression: hampering a woman’s freedom to control her reproductive decisions? Or violating the sanctity of marriage and family by interfering with private decisions? Which is more important?

Which character, if any, was more sympathetic? Would you feel the same way if the woman had instead been a teenage blonde wearing expensive, revealing clothes? Or a tattooed woman in a T-shirt that declared “No Blood For Oil”? Or a young black woman in a midriff-baring shirt with two kids in tow?

Please answer honestly. Your responses will help determine how, and to what extent, the pro-choice movement will defend women’s reproductive rights.

***

That commercial hasn’t been made yet. But it, or a number of variations on the same victimized good woman theme, have been proposed in the past month, since mainstream media discovered the “pharmacists’ rights” movement — the growing phenomenon of pharmacists who refuse to fill prescriptions for birth control because they consider it a form of abortion — and progressive pundits launched into earnest discussion on the precarious balance of rights between religious freedom and a woman’s autonomy over her own body.

Last month, The Washington Post ran a front-page story on the subject by Rob Stein. Though there was little in Stein’s article that wasn’t covered in greater depth in Caroline Bollinger’s Prevention article last August, his report was probably the highest profile yet given to the issue. Until recently, it was a grassroots-level controversy, garnering the attention of few outside the medical, pro-life or pro-choice communities. Then, last fall, a Catholic pharmacist in Wisconsin named Neil Noesen came under disciplinary review by the Wisconsin Department of Regulation and Licensing for refusing to fill a college woman’s birth control prescription at a K-Mart in 2002.

Noesen became the poster-child for the growing number of doctors and pharmacists who believe that “the Pill” is an abortifacient that causes thousands of “silent” or “chemical” abortions each year. Contrary to the opinions of all major medical associations in the country, which define pregnancy as the implantation of a fertilized egg into the wall of the uterus, these medical workers and groups associated with the cause believe that pregnancy begins at fertilization. Birth control pills suppress ovulation; in rare cases a woman’s egg may still be fertilized. The fertilized egg could fail to attach itself to the hormonally altered wall of the uterus, but there’s no evidence of this ever actually happening. Still, many anti-Pill groups cite a paper written by Salt Lake City doctor Joseph B. Stanford, published in the Archives of Family Medicine in February, 2000, on the “post-fertilization effect”: the hypothetical failed-implantations anti-Pill groups call “silent abortions.”

When Noesen was presented with student Amanda Phiede’s birth control prescription in 2002, he asked whether she intended to use the medication for contraception. When Phiede answered yes, Noesen refused to fill the prescription. He also refused to transfer it to another pharmacist willing to fill it, or to return the prescription to Phiede, and he neglected to instruct Phiede that she could try to have her prescription filled at a different K-Mart or at a hospital emergency room. For these refusals, Wisconsin’s Department of Regulation and Licensing filed a complaint against Noesen, charging him with unprofessional conduct for putting Phiede in harm’s way and imposing upon her the risk of pregnancy by refusing to transfer the prescription.

Neil Noesen

The case caused a small media flurry at the time, but one muted by the fact that the rules by which Noesen would be judged were far from clear. The American Pharmacists Association (APhA) supports the right of pharmacists to refuse to dispense medications to which they have moral objections, so long as they advise patients on other ways to obtain their medicine. The former director of Wisconsin’s Pharmacy Internship Board, Paul Rosowski, testified at Noesen’s hearing that only Noesen’s failure to direct Phiede to an emergency room constituted a dereliction of duty.

But the APhA standards aren’t legally binding. They function more as a set of compromise guidelines for accommodating both a pharmacist’s beliefs and a patient’s needs. Noesen had such an arrangement with his temporary employers at K-Mart, who’d told him upon his hiring that his objections weren’t a problem and that another pharmacist would be on hand to fill the prescriptions he would not. But in his testimony, Noesen didn’t focus on his arrangement with K-Mart, or the company’s failure to provide the promised back-up. Rather, he talked about his religious beliefs. Contraceptives, he said, are “intrinsically evil”; transferring Phiede’s prescription would have amounted to “inducing another to sin.”

Anti-Pill activist groups such as Pharmacists for Life, One More Soul, and the American Association of Pro-Life Obstetricians and Gynecologists argued that not only was Noesen in the right, but that any private company that refused to hire or attempted to fire such a pro-life pharmacist would be guilty of workplace discrimination against an employee’s religious or moral beliefs: the onus of burden for accommodating both the customer’s needs and the pharmacist’s objection could fall on the customer or the store, but never on the pharmacist, whose beliefs had to be the first consideration. In response to suggestions that objecting pharmacists should find another line of work, the groups argue that they shouldn’t have to choose between their beliefs and their careers.

Noesen’s lawyer, Krystal Williams-Oby, also argued throughout the trial that any punishment of Noesen would violate his First Amendment guarantee of freedom of religious objection, but her technical case was that since there is no Wisconsin state law or policy concerning pharmacists’ conscientious objections to filling prescriptions, there was no clear guideline that Noesen could have breached.

That’s been steadily changing, though, and largely in favor of the anti-Pill side: the publicity around Noesen’s case helped prompt pro-life groups to introduce a “Pharmacists Conscience Clause Bill” to the Wisconsin legislature, similar to bills recently proposed in at least 26 states and laws already passed in three, which allow any health care worker or institution to refuse to provide services — such as abortion or birth control — that they object to on religious, moral or legal grounds. Last November, Congress passed an institutional conscience clause — called both the “Weldon Amendment” and “The Abortion Non-Discrimination Act,” it was surreptitiously added to a 1,000-page “must-pass” omnibus spending bill the night before it came up for a vote — which allowed any health care entity, including insurance companies and corporate health management organizations (HMOs), to refuse to provide or pay for abortion services, information or referrals on moral grounds.

Up until last month, most of these developments were relegated to the back pages. But after Stein’s article, the issue went mainstream — as if all that was needed to stir the press and galvanize the left was the promise that this was the next big fight. Network news covered the story, and Illinois Governor Rod Blagojevich swiftly approved an emergency rule requiring pharmacies to fill all legal birth control prescriptions “without delay, hassle or lectures.” The New York Times editorialized against the audacity of such over-the-counter moralizing. Arizona governor Janet Napolitano vetoed a conscience clause; California and two other states have proposed bills requiring pharmacies (not pharmacists) to fill all legal prescriptions; and Democratic senators and representatives have introduced federal bills along the same lines. NARAL seized the moment with massive new petition drives. And the “left,” broadly speaking, split its reaction between wheeling indignation; stern calls to stay on task and craft the right message from the story; and the giddy work-shopping of story boards for the killer ads that could be made out of this.

And yet, some liberal writers, such as Amy Sullivan of The Washington Monthly, were wary of the emotionalism raised by the story, and transferred that skepticism to the issue itself, suggesting that it might be a matter of a few, rare injustices falsely whipped up into melodramatic controversy. I disagree with Sullivan’s perspective, a variation on the new Democratic line espoused by pro-choice advocates from Francis Kissling of Catholics for a Free Choice — who denounced the “triumphalism” of pro-choicers flaunting their right with “I had an abortion” T-shirts, and urged the movement to talk more about the tragedies that necessitate abortion — to Hillary Clinton — who’s recently called for finding “common ground” with pro-lifers and is sponsoring the “Prevention First Act” (advertised by NARAL in the conservative Weekly Standard as a way to stop abortions) — that “defends” abortion rights by denouncing the scourge of abortion and arguing that liberalism is better at preventing them. But Sullivan’s conclusion, that this problem is largely hype, is an understandable miscalculation, given that this mounting movement has only existed in the margins of the press.

In contrast to Sullivan’s skepticism is the open delight of liberal strategists who see the story as PR-dream come true: a scandal of encroachments on the very institutions conservatives claim to hold dear, such as personal freedom and the sacrosanct privacy of family and marriage. A real gotcha. This, at last, goes the thinking, could sway a number of middle-of-the-road voters.

Such a take came from Russ Baker on Tom Paine.com. Baker counsels pro-choice advocates to further develop this issue in the framework of “Who’s doing more to prevent abortions?” He also urges pro-choicers to publicize the overreach of their opponents with “simple ads” that stress how anti-Pill groups are attacking society’s most fundamental relationships — “Husband & Wife” and “Patient & Doctor” — with emotional visuals that depict victimized women wandering the streets after having their prescription denied.

“We’ll know we’re on the right track,” writes Baker, “when zinger TV ads air that express our views…. Social issues aren’t just for mobilizing fanatics anymore. They’re for recapturing the moral high ground and bringing it back where it belongs: with the sane, the reasonable, the decent and the fair.”

For pro-choicers, that might seem, at first blush, like sound strategy. Show the public how average folk will be affected by this. Work moderates’ sensibility with appeals to their pity — see this good woman made desperate? Hasn’t she suffered enough? Doesn’t she deserve a break? — or their territoriality — Who’s this pharmacist to come between a man and his wife? Just get the focus off those brazen abortion T-shirts and show how this issue is about everyday people. Not fanatics from either side.

Compared with this sort of giddy strategizing, I prefer blunt, name-calling outrage, or even the blinkered nay-saying of those hesitant to acknowledge the threat for fear of coming across as reactionary leftists, immoderate. Outrage can burn itself out, and tactical skepticism can leave people blind to real danger.

But neither gives me the same sense of vertigo that comes from watching people unfazed by history rushing to repeat it.

***

Here’s another zinger commercial. It ran in Arkansas in 1986 as part of a National Abortion Rights Action League (NARAL) ad campaign created to combat a popular anti-abortion bill after a series of focus group sessions with conservative voters who opposed abortion, but were sympathetic to rape victims as “sexual innocents” and, more importantly, were hostile to the thought of government intrusion in family affairs. The NARAL commercial showed a chaste young schoolgirl walking home with her books, then sobbing in her mother’s arms, and then cut to a photo montage of the trusted authority figures in the girl’s life — her father, her mother, a kindly old doctor — who no longer had any control over whether the girl could obtain an abortion. A male voice narrated: “‘Imagine, your fourteen-year-old child, your own sweet daughter, is raped and pregnant…. Imagine, too, the government says they’ll make the decision. Never mind the circumstances. You, your doctor, your preacher, your daughter have no say in this personal, private tragedy.’” Zing. It worked. The bill failed. But not without a cost: It was no accident that, in the list of those who ought to have a say, the daughter came last.

In Bearing Right: How Conservatives Won the Abortion War, William Saletan describes how in 1973, Roe v. Wade created overnight “a nationwide regime of abortion rights for which no consensus had been built.” Only four states had previously allowed abortion, and especially in conservative states, there was little sympathy for feminism and the idea that a woman was entitled, and had the moral capacity, to make her own reproductive decisions.

As pro-life opposition began mobilizing in earnest in the South and Midwest, pro-choice groups tried to broaden the appeal of their argument to win the support of voters who were hostile to feminism. In the early 1980s, arguing for abortion as a woman’s right would likely alienate conservative southern men who, at best, could care less about women’s liberation, so a number of pro-choice groups, namely NARAL, reframed the debate as a matter of decision-making and power. The argument wasn’t about abortion; it was about protecting individual choice from Big Government interference, and the “right to choose” was sold as a matter of protecting private family decision-making from outside coercion.

This was powerful code, especially in the South, where the slap of forced integration still stung. NARAL and other pro-choice strategists tapped that resentment with their deliberately vague battle cry: “Who Decides — You or Them?” Some feminist groups protested the strategy, arguing instead for a more ideologically pure campaign that stressed women’s rights and competency to make their own reproductive decisions. “Trust Women,” was the slogan they suggested, but it was quickly shot down by pragmatists in the movement who claimed — and were probably correct — that associating abortion rights with feminism or the sexual revolution would be the quickest route to defeat. Roe was on the line, said the pragmatists; this wasn’t the time to fight for women’s lib.

And so “Who Decides?” became the winning slogan. In its ambiguity, the mantra was nearly invincible: “you” could be anyone, a blank slate representing any voter as the one who should decide. “Them” was similarly broad: a nefarious bogeyman without qualities that could stand in for any beholder’s fears. It traded on peoples’ existing beliefs and grudges without seeming to threaten gender roles or the status quo. It worked precisely because it was empty of any meaning. For a while.

Pro-life activists learned from their defeats, and soon responded to “right to choose” rhetoric by focusing their campaigns on the “rights” of those secondary parties first courted by NARAL: A “parent’s right to be consulted,” “a husband’s or boyfriend’s right to have a say,” and “a taxpayer’s right not to pay for an abortion.” “The weights of these rights tilted the seesaw in their favor,” writes Saletan, “leaving the woman suspended in the air. What would defeat the abortion rights movement wasn’t the right to life but the pro-family, anti-government version of the right to choose.”

A pro-life version of the “right to choose” had existed since 1973, when the first in a long list of state and federal conscience clauses was passed, starting with the federal Church Amendment, which gave individuals and medical facilities the right to decline to provide abortion or sterilization procedures because of their moral or ethical beliefs. States legislatures quickly followed suit, and today, 46 states grant conscientious exemptions for doctors who are morally opposed to abortion, excusing them from performing or training for the procedure.

When many of these bills were passed, they were aimed at “pervasively sectarian” institutions like Catholic hospitals, where patients could probably expect to find limited services. But the rise in managed and corporate health care since the 1980s, as well as the large number of hospital mergers (pdf file) between Catholic and non-Catholic institutions in the ’90s, has restricted patients’ options and shifted the burden of accommodating conscience clauses to them. Still, most recent legislation doesn’t consider this growing burden on patients, instead emphasizing further expansions of refusal rights, such as a provision attached to the 1997 Balanced Budget Act, which extended the right of refusal to health care insurers.

Part of the problem is that there’s no clear constitutional precedent for determining this balance of competing “rights.” Proponents of broad conscience clauses argue that the exemptions are a legal right based on the First Amendment guarantee of religious freedom: the religious right to refuse providing certain reproductive services trumping a woman’s right to obtain them. But the Constitution gives no definitive answer: Refusal clauses function to provide exceptions to the rules, exemptions from duty, but these exemptions are neither mandated nor forbidden by either of the First Amendment’s religious freedom clauses, the Free Exercise Clause or the Establishment Clause. The Free Exercise Clause protects religious expression, but has not been interpreted to exempt individuals from following laws simply because they conflict with one’s religious beliefs. It does not, concluded the ACLU Reproductive Freedom Project in its study of the issue, make “each conscience…a law unto itself.” Conversely, while some pro-choice advocates have challenged refusal clauses under the Establishment Clause, which prohibits the government from favoring one religion over another, by claiming that the clauses give certain religious groups special privileges of refusal not granted to others, the Supreme Court has held that the clause allows for broad religious exemptions.

Compounding the ambiguity of the debate is the fact that women do not have a federal constitutional right to receive health care or insurance from any given institution. The ACLU study proposes a compromise solution that considers the burden placed on people who do not share the conscientious objector’s religious beliefs — in the ACLU equation: the lesser the burden, the more acceptable the exemption — as well as whether the exemption protects individuals and pervasively religious institutions (i.e., Catholic hospitals), or rather public institutions with weaker ties to a specific church or religion. The ACLU argued that exemptions for individuals and religious institutions were more acceptable than those for institutions that existed, foremost, in the secular world.

But with the rise of HMOs and a fresh wave of conscience clauses created in the ’90s in anticipation of President Clinton’s universal health care proposal, distinctions such as those proposed by the ACLU study are difficult to make. In this light, the expansion of conscience clause eligibility in last year’s Weldon Amendment was a logical next step for anti-abortion activists: expanding the right of conscientious refusal — and the definition of what type of entity can be qualified as having a conscience — from an individual or a religious institution to any health care entity claiming moral objections to abortion, including nonreligious hospitals, clinics, health insurance companies and HMOs.

Though the aim of the bill was to effect institutions, anti-abortion groups, such as the National Right to Life Committee, lauded it in the press as a just protection of health-care workers’ rights in response to “an orchestrated campaign by pro-abortion groups across the country to use government agencies to coerce health care providers to participate in abortions.” They mocked abortion rights advocates who opposed the bill for claiming to be “pro-choice” even as they opposed unwilling institutions’ choice to refuse abortions. “The champions of ‘choice’ worked to deny the choice of health-care providers to choose not to perform abortion,” said Cathy Cleaver Ruse, a spokeswoman for the U.S. Conference of Catholic Bishops. “Here’s more evidence that ‘pro-choice’ really does mean ‘pro-abortion.’”

According to the USCCB, the new measure was necessary because non-religious hospitals in New Jersey, Alaska and New Mexico had already suffered the kind of financial discrimination for their pro-life policies that the Weldon Amendment would prohibit.

Who were these besieged health care workers being forced to violate their consciences? In New Jersey, it was a public clinic that merged with a Catholic hospital and agreed to stop providing abortions but was ordered by a court to establish a trust fund for patients who sought sterilizations, abortions or related referrals that would no longer be available from the clinic. In Palmer, Alaska, it was a group of religious conservatives elected to a local hospital board that voted to end abortion services and were subsequently sued by an obstetrician-gynecologist who performed abortions at the hospital, and wished to continue. In New Mexico, it was a county commissioner who altered a public hospital’s long-term lease agreement to limit abortion as “a method of birth control,” and whose inserted clause was later ruled unconstitutional by the state finance board.

Abortion rights advocates decried the legislation as a sneaky attack on Roe v. Wade that went well beyond the “conscience clause” it had first been advertised as. It employed such a vague definition of discrimination that it could be used against any federal, state, or local government that tried to ensure basic reproductive health services to its citizens, argued House Democratic Leader Nancy Pelosi; though she tempered her protest by emphasizing her support for prior conscience clauses as an important protection of the religious freedom of Catholics. But the new provision wasn’t playing by the rules: it didn’t mention religion at all.

In a press statement, Planned Parenthood President Gloria Feldt also argued that the bill wasn’t about religious freedom. Besides, she said, it was unnecessary: There was no law that required health care providers to perform abortions. The situation just wasn’t what the pro-life groups said it was.

Pro-choice groups like NARAL seemed to sputter, like Pelosi and Feldt, with disbelief: How could Congress pass an amendment violating the sanctity of the doctor-patient relationship? If pro-life groups were arguing for a doctor’s choice, how could they support a bill that would take it away? How could they use such disingenuous rhetoric as coercion, discrimination, protection, freedom, rights and choice when they were really furthering a specific ideology the whole time?

It must have seemed a bitter irony to veterans of the pro-choice movement, watching their old strategic language come full circle and be used against them. But a yet harsher pill to swallow was the response given by Douglas Johnson, legislative director of the pro-life group National Right to Life. Regarding NARAL’s charge that the Weldon Amendment would limit the freedom of doctors who support abortion rights, Johnson’s answer was a shockingly cold abandonment of the rhetoric that shaped and promoted the bill: he dismissed all concerns about constraints or coercion of pro-choice doctors as a matter that could be handled by the free market. “‘An employer can set its policies,’” he said, “‘and that means that a doctor can go work elsewhere if he doesn’t like that policy.’”

With pro-life exemptions newly secured for all health care entities, Johnson candidly dropped the rhetoric that health care workers shouldn’t have to choose between following their beliefs and keeping their jobs. In the private sector, pro-choice doctors would have the same options as anyone else: They could accept the new terms of their jobs, or leave. Business is business, after all. You see, unlike the left, which has struggled for 30 years to disguise what it was fighting for to the point where it seems not to remember itself, Johnson and the pro-life movement never forgot the ultimate goal their adopted rhetoric served.

***

That’s the long slice of history I think of when I hear proposals like Russ Baker’s commercial; a long series of maneuvers and counter-maneuvers, redefinitions, reclaimings of language and terms of the debate, and clever plans for winning the fight not by changing people’s minds, but by changing what we’re willing to fight for to meet those minds wherever they are. Then and now, it boils down to the same thing: selling a women’s right to abortion has gone hand-in-hand with selling out the basic belief that women are morally complex beings who should be trusted to control their own bodies.

But maybe it’ll work this time? There’s a special weariness I feel, reading the punditry of amateur centrist-Democratic strategists fond of telling liberals which of their principles or issues can be saved — are politically viable — and which must be sacrificed for the greater good. This fatigue is matched by hearing grown-up Democratic strategists and politicians following the same jaded game-plan. It’s not just the soul-sadness of seeing a young generation of would-be players who have already traded a sense of justice for the perceived maturity of practicality, or more bluntly, ideals for ambition, but the more general anemia of moral imagination that presupposes the worst in people, and thus guarantees that the worst is what they’ll receive; the self-reflexive, and self-fulfilling, assumption that, because they aren’t willing to take a risk over mere questions of right and wrong, over beliefs, no one else can be capable of such a leap of faith.

Or if not faith, how about educated change of mind? As Garret Keizer argued in Mother Jones, the left has abandoned its best weapon: its “dogged willingness to teach; to raise consciousness.” It’s the same slow, slogging task of public education that birthed unions, women’s liberation, and civil rights. It meets people where they are, yes, but in order to show the connections between personal experience and the larger fight, not to confirm popular prejudices and wallow in the status quo. For those who doubt that “the American public” is capable of listening and learning, of coming to a conviction based on something more than gut-level reaction, Keizer offers the cautionary tale of his visit to a large, conservative evangelical church, where the poor congregation took notes throughout their pastor’s presentation, as not long ago, they might have paid attention to labor leaders or other witnesses for the left: proof positive to him that the will to learn is still there, but also that the populist teachers have changed.

Convincing people that women should have a right to control their reproductive decisions — not just a vague, rhetorical right “to choose,” but the right to an abortion and birth control, as they say, “on demand” — will take a long, frustrating time. Arguing for abortion as a woman’s right, and not the product and privilege of tragic circumstance that needs to be stopped, will not be a convenient position in an election year, but a lot of election years have come and gone since 1973, and all the half-measure defenses used instead have led to where we are now: not such a long way at all from the nation that first bristled at Roe v. Wade. We’ve put off the real work for long enough, and now it’s time to begin. The right to choose is the right to abortion, birth control and bodily self-determination. So stop squirming when pro-lifers say it, and start telling people why it’s a worthwhile thing. If reproductive freedom is to survive as anything more than an empty slogan, that’s the only choice we have. If we believe what we say, it’s the only one we need.

Kathryn Joyce is managing editor of The Revealer.