The push to mainstream abortion in the health professions began in the early 1990s. Pro-choice advocates feared that abortion providers were being steadily driven from the field, isolating those who remained and leaving them vulnerable to threats and violence. They contended that what the Supreme Court had declared a right in Roe v. Wade could become an illusion if women were unable to find providers or if they encountered stigma or hostility when they tried. A sense of solidarity under siege developed among abortion advocates and their allies in the professions.
In his 1991 book "The Hollow Hope," University of Chicago Law Professor Gerald Rosenberg observed that many hospitals and OB/GYNs still refused to perform abortions, adding that "an increasing percentage of obstetrics and gynecology residency programs do not provide training for it." Abortion would be a genuine right, Rosenberg argued, only when it was mainstreamed.
These fears were not unfounded. In 1993, Randall Terry of the pro-life group Operation Rescue declared at a Florida rally that "the weak link is the doctor. We're going to expose them. We're going to humiliate them." A few days later, a Florida abortion doctor was murdered. Later that year, another was injured, and in 1994 four people were killed in two separate abortion clinic attacks. A doctor was injured in a third attempt. From 1995 to 1998, a number of doctors, nurses and security guards were killed or injured in five separate incidents. After a 10-year lull, another doctor was murdered in 2009.
In 2010 Emily Bazelon wrote an article in the New York Times that outlined a determined effort to mainstream abortion within the health professions. The first moves were to require abortion training for OB/GYNs, shifting training and practice into teaching hospitals and encouraging mainstream doctors to become abortion providers. Bazelon called this a "deliberate and concerted counteroffensive" in which "abortion-rights advocates have quietly worked to reverse the marginalization."
As part of this agenda, Bazelon reported, the Accreditation Council for Graduate Medical Education (ACGME) ruled in 1995 that, with limited exceptions, OB/GYN residency programs must include abortion training or lose accreditation. Congress fired back by leveraging federal funding to block ACGME.
Some argue that little changed over the next decade. A 2009 American Congress of Obstetricians and Gynecologists (ACOG) opinion noted, "The number of abortion providers has decreased over the past two decades," falling 11 percent from 1996 to 2000 and another two percent in the next five years.
ACOG also observed that "highly charged emotional and political debate stigmatizes the women who undergo abortion and the providers who offer abortion," adding that this "negative atmosphere may be a deterrent to training providers and offering reproductive health services."
Dr. Donna Harrison, director of research and policy at the American Association of Pro-Life OB/GYNs, is well aware of ACOG's concern. "Physicians who have taken the Hippocratic oath have vowed never to perform abortion or euthanasia, which is a thorn in the side of the pro-abortion/pro-choice agenda," she said, "and thus a concerted effort is being made to eliminate the physician of conscience from the practice of obstetrics and gynecology."
Embattled professional norms
The national OB/GYN licensing board stoked these fears in 2007 when it announced it would take binding ethics guidelines from ACOG, which is a voluntary organization. ACOG had recently published an opinion that would require doctors to provide active referrals for abortion.
Then-HHS Secretary Michael Leavitt, who is now a member of the Deseret News editorial advisory board, began writing new HHS regulations to clarify abortion conscience protections. Among other things, the new rules made clear that threatening conscientious objectors through professional licensing would violate federal law. The rules also clarified the definition of "assist" in a manner that would have supported the New Jersey nurses in 2011.
The new HHS rules became intensely controversial. Critics contended they expanded protections beyond the statute. The result, they argued, could be professional chaos. In addition, critics viewed the compliance statements as onerous and overly vague legal traps.
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