Yesterday a number of people forwarded me this op-ed from Terry Jeffrey of CNS News, claiming that, as governor of Massachusetts, Mitt Romney “decided Catholic hospitals would be required under his interpretation of a new state law to give rape victims a drug that can induce abortions.” The claim is salient in part because of the Obama administration’s looming requirement that even religious institutions must soon offer coverage for contraception (including potentially abortifacient emergency contraceptions) — a requirement that will soon trigger a number of legal challenges and is set to become a key issue in the 2012 presidential race.
Mr. Jeffrey’s thesis lies in the twists and turns of Governor Romney’s battle with his own legislature over expanded access to “Plan B” emergency contraception (“EC”), drugs that can prevent pregnancy after rape but can also potentially act as abortifacients by preventing a fertilized egg from implanting. The legislature passed legislation mandating that hospitals — including the state’s Catholic hospitals — administer EC. Governor Romney vetoed that legislation and the next day took to the pages of the Boston Globe to explain his pro-life stance:
You can’t be a prolife governor in a prochoice state without understanding that there are heartfelt and thoughtful arguments on both sides of the question. Many women considering abortions face terrible pressures, hurts, and fears; we should come to their aid with all the resourcefulness and empathy we can offer. At the same time, the starting point should be the innocence and vulnerability of the child waiting to be born.
In some respects, these convictions have evolved and deepened during my time as governor. In considering the issue of embryo cloning and embryo farming, I saw where the harsh logic of abortion can lead — to the view of innocent new life as nothing more than research material or a commodity to be exploited.
Unfortunately, however, the legislature overrode his veto (by overwhelming margins). What followed was a dispute over the meaning of two seemingly conflicting state laws: a decades-old law exempting private hospitals from providing contraceptives and the newer law containing no such exemptions. Initially, the Massachusetts Department of Public Health (which was charged with crafting regulations implementing the new EC law) took the position that the new law didn’t supersede the old and that Catholic hospitals could opt out. Two days later, the Romney administration reversed this view, stating the proper legal interpretation was that the new law did, in fact, apply to all hospitals in the state. This declaration ended a looming fight with the legislature (which was committed to universal application) and is the reason why Mr. Jeffrey now believes Mitt Romney isn’t a “true leader.”
But if Mitt Romney wasn’t a “true leader” on pro-life issues while governor, why did such Massachusetts pro-life stalwarts as Mary Ann Glendon and Joseph Reilly publicly declare their appreciation for his efforts in Massachusetts, and why did Massachusetts Citizens for Life give Mitt its “political leadership” award? Perhaps because they know he did all he reasonably could.
Or perhaps they also know the story did not end where Mr. Jeffrey ended his column. The Massachusetts Department of Public Health did in fact draft regulations implementing the EC law, and those regulations contain a few key words and phrases. First, they require hospitals to “offer” EC “if medically indicated” and to dispense EC “unless medically contraindicated.” Directive 36 of the United States Conference of Catholic Bishops’ Ethical and Religious Directives for Catholic Health Care Services permits Catholic hospitals to dispense EC if, “after testing, there is no evidence ovulation has occurred.” But the hospital may not dispense medication that has the “purpose or effect” of “the removal, destruction, or interference with the implantation of a fertilized ovum.” At the same time, the federal Church Amendment protects the conscience rights of individual providers who refuse to participate in sterilizations or abortions.
The Massachusetts regulations, the Church Amendment, and Directive 36 combine to create a number of potential loopholes and workarounds. For example, EC is acceptable when there is no ovulation. But what if tests indicate ovulation? Then does the Church Amendment lock in to protect the individual provider against participation in abortion? Does the “medical indication” change the legal analysis? In fact, pro-abortion groups have critiqued both the regulations and their implementation.
If all of this sounds ridiculously wonkish, it is. But that’s how disputes are navigated under the shadow of Roe v. Wade. Battles are fought in the fine print, and the grand gestures are often saved only for those times when they might make an impact. If Mitt Romney had followed Mr. Jeffrey’s advice, the situation in Massachusetts (and elsewhere) could be much worse. Lawsuits filed under sub-optimal facts in more pro-abortion jurisdictions rarely result in quality precedent and often do more harm than good. Fights picked with extremist pro-abortion legislatures rarely turn out well for the cause of life.
There are parallels between this argument over pro-life tactics and the argument over Mitt Romney’s response to the Massachusetts Supreme Court’s same-sex marriage ruling. In both cases some activists demanded a grand gesture, but Mitt responded by fighting the fights he could win: enforcing a little-known, almost century-old law prohibiting out-of-state marriages if the marriage wouldn’t be legal in the couple’s home state, supporting a state marriage amendment, and even filing a lawsuit to force the legislature to act on the amendment.
In the conscience arena, he not only vetoed the EC law and took to the pages of the Globe to explain his reasoning, he supported Catholic Charities’ resistance to placing children with same-sex couples, and even filed “An Act Protecting Religious Freedom” to protect the rights of conscience of Catholic Charities and other religious organizations in Massachusetts. In fact, many of these actions are what convinced me to become an “evangelical for Mitt.”
Today (as already covered on NRO), Governor Romney issued an unequivocal pledge to reverse the Obama administration’s assault on religious liberty:
I am committed to overturning Obamacare root and branch. If I am elected President, on day one of my administration I will issue an executive order directing my Secretary of Health and Human Services to issue a waiver from its requirements to all 50 states. And on day one I will eliminate the Obama administration rule that compels religious institutions to violate the tenets of their own faith. Such rules don’t belong in the America that I believe in.
I have no doubt it’s a promise he’ll keep.
(Oh, and disclaimer)