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by Jenna Litz

I know that I am not alone when I say that the prospective voting choices presented in the upcoming presidential election leave me feeling nauseated.  But as the days leading up to November melt away beneath us at a frightening speed, it is imperative that we, as voters, don’t fall prey to the gripping lie that there is inevitable progress in history.

Contrary to popular progressive belief, there is no guarantee that the American story will inevitably unfold in such a way that the future will always be better than the past.  If anything, the pages of history testify to the unpredictable, unreliable, and often unsavory nature of human character, especially the character of those ensconced in the hierarchies of political institutions.  That is why it is critical for Americans to fulfill their mandate as citizens to explore, anchor, and defend their convictions about the issues that matter, regardless of the uncertain and choppy waters ahead.

There is no higher calling, than the obligation to protect the equal and intrinsic value of all human beings, regardless of intelligence, sex, race, age, location, degree of dependency, or even their value in the eyes of others.

Abortion is a radical, deadly violation of any understanding of equality, liberty, and justice.  Why should this issue matter to any serious member of our society, especially in light of the vast mosaic of complicated and difficult issues the United States is currently facing?  It is because the issue of life itself is the deepest and most fundamental of public questions.  It not only ultimately dictates who can be legally understood as a member of our society, but it also calls into question who has the authority to decide that membership.

This is no fringe issue relegated to the sideline-banter of idealists, because the stakes could not possibly be higher.  If we, as a nation, do not get the question of “belonging” right, then it is impossible to protect those whom society has arbitrarily deemed “nonpersons” from the all-powerful collective interests of those that are labeled as “persons.”

While currently disagreement can be found about which people groups should fall into protected classes, there does exist a social understanding that historically marginalized groups do need protection and consideration alongside everybody else.  This concept of protection has most recently been reflected in the ‘final rule’ of Section 1557 of the Affordable Care Act (ACA), which lays out the most comprehensive provisions against sex discrimination in healthcare that the federal government has ever offered.

Regardless of the heated debate about whether healthcare should be a privilege or a right, it can be reasonably concluded that this provision in the healthcare arena does reflect a general cultural desire to reach out to and protect marginalized groups, even if the legislation only applies to popularly understood marginalized groups.  Section 1557 does not merely apply to victims of sex discrimination in healthcare.  Specifically, this provision of the ACA legally prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.

While the general principles of this legislation are not new, having been built on familiar long-standing and familiar Federal civil rights laws, Section 1557 does extend nondiscrimination protections to individuals in new arenas, including but not limited to, any health programs provided by or funded by HHS and all Health Insurance Marketplaces, like Medicare and Medicaid, and providers and plans that participate in those Marketplaces.

The federal government now subsidizes and manages so much of the medical insurance market, that it is nearly impossible for healthcare professionals to work free from these regulations.  So, if the Office for Civil Rights discovers that a healthcare entity has violated Section 1557, that entity can not only be completely stripped of all federal funding, but it can also be sued by individuals for damages in federal court.

Because Section 1557 is the first Federal civil rights legislation to so broadly prohibit sex discrimination in federally funded healthcare programs, it functions as the evaluative mechanism to provide legal recourse to consumers who feel they have been discriminated against on the basis of pregnancy, gender identity, or sex stereotyping.  Categorical coverage exclusions or limitations for all health services related to gender transition are considered discriminatory.

Sex discrimination can appear at any period in the healthcare process, anywhere from the obtainment of adequate insurance, to the receiving of proper diagnosis and treatment.  Under Section 1557, sex discrimination includes discrimination based on pregnancy, pregnancy-related conditions, pregnancy termination, and marital or familial status. Essentially, health programs that are covered by Section 1557 cannot treat people inequitably because they are pregnant, have had an abortion, are unmarried, are transgender, are gay or lesbian, or don’t meet traditional sex stereotypes.

Despite this expression of renewed congressional commitment to some brand of equality, the final rule on Section 1557 does not include a religious exemption, which should rightly leave conscientious objectors in the medical field wondering about the status of their religious freedom.  While the final rule does not technically displace existing protections for religious freedom and conscience, its robust definition of sex discrimination leaves little doubt about its priorities.

The United States is at a critical point in deciding to what extent the law will allow religious claims to trump other interests.  Conscience claims like those expressed in Burwell v. Hobby Lobby are colliding with the demands of newly recognized classes of patients.  To the casual observer, the ACA’s nondiscrimination policies are a protective legal mechanism awash with good intentions.  But below the surface, exists a culture-sculpting agenda neatly folded into its bleeding-heart apparatus.  A warhorse armed and adorned as a champion for the masses, its hollowed-out core hardly visible to the wary eye.  Section 1557 is a trojan promise, gutless and depleted from the start.

Championing the rights of underprivileged and disenfranchised people can only be laudable if the categories of people recognized as eligible for protection are not chosen based on the arbitrary whims of popular opinion.  Each person possesses value that is non-contingent and unconditional, and therefore does not ebb or flow according to the interests of others, the level of biological development, dependency, or any accidental characteristics like age, sex, size, or location. Any notion that pits the value of the unborn against the value of the mother or anyone else, effectively inverts our best moral traditions and privileges the claims of the strong and well-established over the weak and voiceless.

The central claim of the pro-life movement is that each human being is intrinsically equal in dignity simply because he or she is a member of the human family.  Such a generous understanding of personhood rests on the science of modern embryology, and in the notions of human equality embedded in our nation’s traditional, classical, and liberal ideas.

The only cogent and non-self-refuting understanding of human equality is one that encompasses all human beings at all stages of development, and yes, of course includes the pregnant woman who is in crisis.  If anyone counts, everyone must count, and this must be reflected in all areas of public policy.

So what about the arguments against legislating “morality?”  Even those most skeptical of government intervention would agree that the government has a legitimate interest in protecting humans threatened by mass-violence.  The state-of-affairs of human beings at the earliest stages of development is not a matter of private morality.  It is, however, a case of utter injustice.

For good or ill, our laws not only reflect contemporary culture, but also shape it.  If pro-life Americans are truly serious about changing cultural attitudes in this area, they must not shirk from the pedagogical function of the law, and they must encourage those in civil leadership to exercise their unparalleled responsibility to persuade the world that every life matters.

These are no mere auxiliary concerns on the periphery of our political landscape.  No, these questions sum up the most basic moral and legal principles that illustrate this nation’s commitment to justice and equality.  The only path consistent with founding principles is the unconditional provision of equal justice for all, regardless of convenience.

It’s about time we drop the charade that the Supreme Court’s ruling in Roe v. Wade did anything to absolve or resolve the deep-seated disagreement between Americans about the morality of abortion.  It’s time we stop pretending that our current legal tradition is anything close to egalitarian when it systematically facilitates the death of our most vulnerable members.  It’s time we acknowledge, that in America’s pursuit of equality for women in healthcare and in the work force, this nation has bowled over and pulverized the traditions it uniquely set in place to enhance and promote the dignity of all life regardless of its origin story.

It is absurdly pretentious to assume that we have progressed so far as a nation, that we have graduated from the need to live the examined life and no longer need to routinely assess and weigh our legal traditions.

Can we agree that, at least for now, we must reassess whether we are actually consistently promoting a liberal and egalitarian view of human equality? Don’t we owe that to all those who have previously sacrificed their efforts for the good of this nation? Don’t we owe that to our children?

 

Photo Credit: pledgeprolife.com

6 COMMENTS

  1. Hi Jenna, thanks for writing a tremendous article. I think Integras is a great place to have this discussion about colliding values.

    You provided an excellent link (http://www.yalelawjournal.org/note/reproductive-care-and-the-acas-nondiscrimination-mandate) regarding the impacts of Section 1557 on religious institutions. I’m the furthest thing from a law scholar, but I tried to parse it.

    It seems to suggest that the Section’s impact will be larger because Catholic hospitals have expanded considerably through mergers and acquisitions. As an effect, non-religious institutions are being subject to the Catholic Directives, which dictate how health professionals interact with patients. In some incidents, mothers have been denied life-saving information because the Directives prohibit doctors from informing patients about their need for an abortion. It’s even more chaotic because hospitals don’t always tell patients that they are prohibited from prescribing certain courses of action. Patients are often kept in the dark, and it can be dangerous.

    The Yale Law Journal concludes that Section 1557 would enable doctors who work at this type of hospital to perform reproductive care when obligated by conscience. It basically crafts a better balance between the religious freedom of healthcare providers and the health and safety of patients.

    And, as you helpfully note in your article, Section 1557 does not displace any existing protections for religious freedom.

    Given this, I’m skeptical about this paragraph:

    “But below the surface, exists a culture-sculpting agenda neatly folded into its bleeding-heart apparatus. A warhorse armed and adorned as a champion for the masses, its hollowed-out core hardly visible to the wary eye. Section 1557 is a trojan promise, gutless and depleted from the start.”

    Again, thanks for this well-written and thoughtful article! You’ve constructed an excellent case for the Right to Life.

    • Hello Ben,
      Thank you so much for taking the time to read this article. I cannot tell you how much that means to me, and I am grateful that you have clicked on the links and engaged with the issues further. I have read over your comment multiple times and reviewed the quote you pulled out from my piece in context as well. In that instance, I definitely wanted to draw out the discussion about which classes of people are legally protected and also question the qualifications for that protection. As I’m sure you know, my opinion is that it is inconsistent to protect the classes/groups that we like and/or are most convenient to us. That being said, I would admit that the phrase, “But below the surface, exists a culture-sculpting agenda neatly folded into its bleeding-heart apparatus” is a little bit heavy-handed and overdone. I don’t want that to distract from my main point, that Section 1557’s devotion to protection and equality is pretty arbitrary. If I had the chance to rewrite this, I would probably take out or tone down that first phrase, in order to focus on the main argument that I was making. I will admit it was difficult to tie together so many issues, and I hope that I didn’t take on too much. I’m definitely learning through this process. Thank you for pointing that out and for keeping me accountable.

  2. Bloody brilliant my friend. You writing is both informative, and refreshing. Keep exploring the serpentine passages of law and society. You are sure to go amazing places Jenna. I am honored to know you as a friend. We live in a garden of beasts, hold fast to the light and to your God-given convictions.

    • Blake, I can definitely point to you when I list off the people who have pushed and motivated me. This comment meant so much more because I have so much respect for you. Please let’s keep in touch.

    • Blake, I can definitely point to you when I list of the people who have pushed and motivated me. This comment meant so much more because I have so much respect for you. Please let’s keep in touch.

  3. Hi Jenna,

    This a great article. But there is one quote I would like to talk to you about.

    “There is no higher calling, than the obligation to protect the equal and intrinsic value of all human beings, regardless of intelligence, sex, race, age, location, degree of dependency, or even their value in the eyes of others.”

    Well I respectfully disagree with the wording of no higher calling. Because the only calling is given by the Lord and arguing that the greatest calling is great commission. I am definitely, clearly, pro-life. What you are talking about is very important. But there is something much more important at stake. “And do not fear those who kill the body but cannot kill the soul. But rather fear Him who is able to destroy both soul and body in hell.”
    ‭‭Matthew‬ ‭10:28‬ ‭NKJV‬‬

    Imagine how many souls could be won if you used your multiple skills for winning souls in the kingdom?

    I am proud to know such a gifted and intelligent person as you.

    God Bless!

    Ben

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