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Right to refuse is a key issue in abortion debate

Copyright © 2021 Albuquerque Journal

SANTA FE – Discussions about abortion laws in New Mexico have always had moral and religious overtones.

But this year’s debate at the Roundhouse over bills to repeal a long-dormant 1969 state abortion ban has also hinged on a “conscience clause” in the abortion statute that allows health care practitioners to decide not to participate in such procedures.

Sen. Gregg Schmedes, R-Tijeras, argues in the Senate on Thursday in favor of an amendment that would have left a “conscience clause” intact in an old New Mexico abortion statute. The amendment was rejected, and a bill repealing the statute passed on a largely party-line vote. (Eddie Moore/Albuquerque Journal)

Critics of the legislation, which passed the Senate last week and could move quickly through the House, say repealing the abortion ban would lead to an exodus of health care workers, especially in rural New Mexico.

But backers claim the argument is a red herring and point to other conscience protections in state and federal law that would remain in place if the abortion law is repealed.

Two of the state’s major health care providers – Presbyterian Healthcare Services and University of New Mexico Hospital – say passage of the bill would not lead to their physicians being forced to participate in abortion.

Heather Brislen, a primary care physician in Albuquerque, said medical professionals who have vowed to leave New Mexico if the bill passes have been misled by attorneys and abortion rights opponents.

“The fact there is a conscience clause built into this old criminal abortion statute is irrelevant,” Brislen told the Journal.

But some skeptics are not convinced.

Teresa Fisher, a fourth-year nursing student at University of New Mexico, said she would consider leaving the state if the abortion ban is repealed.

“If you’re going to be forced to do things you don’t agree with, that would be a deal breaker,” Fisher said in an interview.

The issue also flared during the Senate debate on the bill when Sen. Gregg Schmedes, R-Tijeras, proposed an amendment that would have left the conscience clause intact.

Schmedes, a nose and throat physician, questioned the strength of federal conscience protections and said doctors in other states have lost their jobs for refusing to participate in abortions.

And other Republicans pointed out that a 2019 abortion repeal bill, which was defeated on the Senate floor, would have left the conscience clause intact.

“I guess things have changed,” said Senate Minority Leader Greg Baca, R-Belen.

But Democrats say adding the amendment to the 2019 abortion repeal bill did not seem to satisfy critics.

And the claims of doctors being forced to participate in medical procedures despite moral objections were described as “scare tactics” by Sen. Jacob Candelaria, D-Albuquerqu.

Sen. Peter Wirth

Senate Majority Leader Peter Wirth, D-Santa Fe, pointed out that the New Mexico Medical Society, along with a number of other statewide medical groups, support repealing the entire 1969 statute – including the conscience clause.

“The idea there’s no conscience clause protection in the practicing of medicine is just wrong,” Wirth said.

Adequate protections

Many hospital leaders and health care experts around New Mexico say repealing the conscience clause wouldn’t force health care providers to participate in abortions over their objections.

“I don’t think there’s any remote possibility of that,” said Robert Schwartz, a University of New Mexico professor emeritus at the School of Law and co-author of a textbook on health law.

Under the state Uniform Health Care Decisions Act, for example, a health care practitioner can decline to participate in any health care decision or instruction for reasons of conscience. But they have to make reasonable efforts to assist in transferring the patient to someone else who is willing to comply.

In addition to the state law, a federal law allows individuals to refuse to provide an abortion if it’s contrary to their moral or religious beliefs, according to the state Administrative Office of the Courts. It applies to hospitals that receive certain federal funding.

Representatives of Presbyterian Healthcare Services and the University of New Mexico Hospital said the abortion bill under consideration this year wouldn’t affect their practices.

Citing the state health care decisions law, Dr. Jason Mitchell, Presbyterian’s chief medical officer, said, “All Presbyterian health care providers have the ability to decline to participate in care services based on reasons of conscience. This would not change with pending legislation.”

UNM Health spokesman Mark Rudi said hospital officials “respect all employees and providers having a voice and practicing in areas they are comfortable providing care.”

New sense of urgency

The 1969 abortion ban is now unenforceable due to the U.S. Supreme Court’s ruling in Roe v. Wade, which was handed down just four years later.

Backers of repealing New Mexico’s long-dormant statute say changes to the Supreme Court’s makeup during the tenure of former President Donald Trump have cast that landmark court ruling in doubt and given added urgency to their cause.

Given that backdrop, the debate on the abortion bills, Senate Bill 10 and House Bill 7, has been predictably intense and personal.

One lawmaker, Rep. Phelps Anderson of Roswell, even changed his party affiliation from Republican to independent after coming under fire for his vote in a House committee in favor of the legislation.

The debate has also underscored a physician shortage, which has caused long waits for appointments.

Sen. Gay Kernan, R-Hobbs, said many women in southeastern New Mexico travel to neighboring Texas due to the shortage of obstetricians and gynecologists in the region.

Barbara McAneny

Barbara McAneny, an Albuquerque oncologist and former president of the American Medical Association, said she’s hopeful no health care workers would leave New Mexico if the abortion repeal bill is signed into law.

She said doctors and nurses would retain the ability to decline to participate in not just abortions, but other medical procedures, such as vasectomies and circumcisions, if the abortion ban is repealed.

“We strongly believe that no physicians should have to perform a procedure that violates their conscience or their religion,” McAneny told the Journal.

‘A really bad move’

Rep. Rebecca Dow, R-Truth or Consequences, said she isn’t convinced it’s appropriate to repeal the abortion conscience clause.

Rep. Rebecca Dow

For one thing, she said, there would be no harm in leaving it on the books. And, she said, a proposed medical aid-in-dying bill includes a conscience provision, undercutting Democrats’ contention that the issue is covered in existing law.

Removing the abortion conscience clause, Dow said, sends the wrong message to doctors.

“It’s a really bad move in a state with a health care shortage,” she said.

Schwartz said the conscience clause in the aid-in-dying proposal may not be necessary, although he said it’s a bit more complicated because that bill is intended to protect both sides – providers who don’t want to participate and providers who do.

As for abortion, he said, state law is already “absolutely clear that any health care provider may decline to participate in any health care activity for reasons of conscience,” he said.

For his part, House Speaker Brian Egolf, D-Santa Fe, suggested the conscience clause claims by those who oppose the abortion repeal legislation are intended to muddy the waters of an already emotional issue.

“There’s no substance to their criticism – period,” he said.

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