Friday, December 21, 2012

Roe and the Changing Meaning of Conscientious Objection

Robin Elliott’s journey in the abortion rights movement brought him from England to Columbia University and finally into the front lines of the abortion wars. The director of public relations for Planned Parenthood, Elliott worked, after 1973, to create a new message for the abortion-rights movement. He urged Planned Parenthood to stress individual freedom of conscience. A person could oppose abortion but could not impose that belief on anyone else.

A similar idea found expression in the Church Amendment, a conscience-clause law passed with bipartisan support in 1973. As Sara Dubow argued recently at the American Society for Legal History Conference, conscience legislation in the 1970s was popular, uncontroversial, and widespread. In the decades to come, however, conscience laws took their place at the center of conflict about women’s health and religious liberty. 

Dubow attributes this shift to several larger changes in the political terrain. Bipartisan consensus on the importance of religious freedom, the desirability of guaranteed access to healthcare, and women's rights broke down over time. Legislators once willing to discuss conscience without mentioning abortion were no longer willing to do so.

This argument is as compelling as much of Dubow’s work (see Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (New York: Oxford University Press, 2010)). I think a few additional changes have fueled the conscience wars. First, in the decades since Roe came down, consensus on the value of conscience has obscured intense conflict about what choice or conscience means. Beginning in the mid-1970s, abortion opponents seized on the ideas of choice as a way of narrowing abortion rights. In this account, the Constitution recognized the importance of a woman’s freedom of conscience rather than access to abortion. As the Supreme Court expressed views of this kind in cases like Maher v. Roe, it became clear that agreement on the importance of freedom of conscience went only so far. Those on opposing sides of the abortion issue held dramatically different views on what that freedom involved.

Second, those claiming freedom of conscience have defined that freedom ever more broadly. The Church Amendment applied primarily to those who did not want to assist in abortions. Current religious liberty claims suggest that the legality of abortion or same-sex marriage itself represents a threat to freedom of conscience. Abortion opponents, among others, argue that making something legal creates a risk that believers will have to learn about, participate in, or approve of that practice. Defined in this way, freedom of conscience almost requires a ban on the challenged practice.

As early as 1973, participants in the conscience wars disagreed about who could speak for religious liberty and what that liberty entailed. Now, this conflict is more visible and intense, but it began as early as did Robin Elliott’s public-relations campaign.