Question: Under existing law, can a health-care institution run by pro-lifers that receives funding from the U.S. Department of Health and Human Services refuse to hire an unrepentant abortionist simply because the institution's administrators believe it would give scandal to the community to put on their staff a person who -- in his own offices away from the hospital -- has killed unborn babies for money?
Answer: probably not.
In fact, it would be an unambiguous violation of longstanding law for a pro-life health-care organization that receives funding from HHS under the Public Health Service Act to refuse to hire an abortionist simply because he is an abortionist.
Sounds crazy, right? It has been the law of the United States since 1973.
The same law, in almost the same breath, also prohibits a pro-abortion health-care organization from refusing to hire a pro-life doctor because a pro-life doctor won't kill unborn babies.
It gets crazier still. The "conscience" regulations that HHS finalized the day that President Bush left office -- and that the Obama administration has indicated it wants to repeal -- do not create any new restrictions on what hospitals and other health-care providers that receive HHS funds may or may not do in dealing with people who will or will not perform abortions.
What the regulations do say is that health-care providers receiving HHS funds must now certify in writing that they are complying with three federal "conscience" laws.
One is the Weldon Amendment, included in the annual HHS appropriation, which denies funding to any program that discriminates against individuals or institutions that do "not provide, pay for, provide coverage of, or refer for abortions."
Another is section 245 of the Public Health Service Act, which prohibits state and local governments that receive federal funding from discriminating against persons and health-care institutions that do not train people to do abortions or refer people to abortion training.
The third law came together as a series of amendments sponsored by Democratic Sen. Frank Church of Idaho in the 1970s.
This law -- 42 U.S.C. 300a-7 -- says in part that no entity receiving federal funds through various HHS programs, including the Public Health Service Act, "may -- (A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or (B) discriminate in the extension of staff or other privileges to any physician or other health care personnel, because he performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions."
The same law also protects individuals and health-care institutions receiving HHS funds from being compelled to perform, assist in or provide facilities for abortions and sterilizations.
It also contains a clause that forbids any entity receiving federal "biomedical or behavioral" research grants from engaging in employment discrimination against anybody "because he performed or assisted in the performance of any lawful health service or research activity, because he refused to perform or assist in the performance of any such service or activity on the grounds that his performance or assistance in the performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions."
In other words, the administrator of a religious medical school could not say: Excuse me, doctor, but we don't want to hire you because we understand you have spent the last five years destroying human embryos and experimenting with their stem cells.
Likewise, a pro-abortion medical school could not say: Excuse me, doctor, we don't want to hire you because you refuse to destroy human embryos.
What both hospitals will have to do under the regulations instituted Jan. 20 by the Bush administration is certify to the government that they aren't discriminating in this way.
Also -- so long as the now-Democratic Congress re-enacts the Weldon Amendment each year -- state and local government agencies and health-care institutions receiving HHS funds will need to certify that they are not discriminating against people and institutions that do "not provide, pay for, provide coverage of, or refer for abortions."
How many health-care "entities" will this regulation affect? In the Dec. 19 Federal Register, HHS estimated it would be 571,947.
Pro-lifers like me believe the new regulation is good because it will increase awareness of the laws prohibiting discrimination against pro-life health-care professionals and help enforce those laws.
But debate over this regulation should also increase awareness of something that is not good. We have already accepted the notion that government funding of health care should be pervasive in our society, and that with government cash comes government dictation of standards -- up to and including whether a health-care institution should be allowed to discriminate against an abortionist.
If government ends up funding everyone's health care, government will dictate the standards of everyone's care. And for more than 30 years, the government has protected doctors who kill babies.