The Federalist Society

Bar Watch Bulletin August 6, 2004

Catholic Hospitals, former ABA presidents sign statement against torture memo, AGs forum

August 6, 2004

Controversy About Recommendation Concerning Catholic Hospitals
A recommendation offered by the Section of Individual Rights & Responsibilities (IRR) concerning informed consent and religious hospitals is drawing the ire of Catholic groups. Should religious hospitals be forced to inform patients about abortion services and other treatment options that they do not offer on grounds of conscience? The recommendation "reiterates the importance of fully informed consent and the reasonable accessibility of treatment options in health care delivery." The IRR Section notes that it is currently ABA policy to ensure the rights of patients of federally funded family clinics to receive counseling and referrals with respect to all medical options regarding pregnancy. The Section seeks to extend such protections to all patients in all medical settings. Catholic groups have decried this proposal as an attempt to nullify the conscience rights of health care providers.

In the report accompanying the recommendation, the sponsors maintain that the "rapid expansion of religiously-controlled hospital systems and managed care plans" has restricted "not only the availability of certain health care services, but also the disclosure of information about and/or referrals for treatment options." The report states that changes in the health care delivery system (particularly the growth of religiously controlled hospitals) have impeded informed consent and access to care in recent years. Five of the ten largest hospitals in the country are Catholic, the sponsors note in a footnote, and do not provide contraceptive methods other than natural family planning, and also do not provide sterilization, abortion, and most infertility treatments. These hospitals will not inform patients about options such as the morning-after pill after a rape, egg harvesting after cancer treatments, or the use of condoms to prevent AIDS/HIV.

The report also condemns the use of refusal clauses, federal and state statutory provisions allowing health care providers to "opt out" from "discussing, providing, or making referrals for certain health care services, based on religious or moral objections."

The U.S. Conference on Catholic Bishops has already spoken out against this recommendation as it "is expressly targeted at Catholic health care and our right to practice our faith in our institutions." The Conference's General Counsel, Mark Chopko, wrote that the recommendation is "an affront to religious conscience and if adopted puts the ABA further along as an opponent of individual conscience if that conscience is formed by religious values."

He continues, "The report makes explicit that this proposal is an attempt to blunt and prevent recognition in law of rights of conscience on the part of individual and institutional (including Catholic) health care providers. Much of the rhetoric of groups opposed to conscience protection (e.g. referring to conscientious exemptions as "refusal clauses") has found its way into the report, which refers specifically and critically (and sometimes misleadingly) to Catholic practices."

"It is particularly troubling that a resolution of this kind would come from a section devoted to advancement of individual rights and responsibilities, as clearly the expressed intent here would be to interfere with the exercise of constitutionally-based rights…In our communities Catholic health care is one of the bedrocks of community services. Assisting the Planned Parenthood lobby to push Catholic health care away from its religious mission is not only offensive but potentially dangerous to the health and common good of many of our communities," Chopko writes.

The IRR's recommendation is scheduled to be considered by the House of Delegates next Monday or Tuesday.

This recommendation is not the only item of interest to Catholic groups at the ABA's convention. Last month, the ABA announced that it would be awarding Father Robert Drinan with its highest honor, the ABA medal. Father Drinan has provoked much controversy amongst Catholics over the years because of his outspokenness and his positions concerning abortion, U.S. foreign policy, slave reparations, felon voting rights, affirmative action, and the separation of church and state. Click HERE to read more on this award.

Former ABA Presidents Sign Statement Criticizing "Torture Memos"
Yesterday over 100 lawyers-including seven former ABA presidents-released a statement criticizing the Bush Administration's "torture memos." The signatories have called upon the administration to release all memoranda and documents related to the treatment of prisoners and detainees and for an appropriate inquiry of how and why the memoranda were prepared and by whom they were approved. They declare, "The Administration's memoranda…ignore and misinterpret the U.S. Constitution and laws, international treaties, and rules of international law. The lawyers who approved and signed these memoranda have not met their high obligation to defend the Constitution."

Some of the signatories with past/current ties to the ABA include: Former ABA presidents Phillip Anderson, Talbot "Sandy" D'Alemberte, John Curtin, Robert Hirshon, Robert MacCrate, and Jerome Shestack; Neal R. Sonnett, the chairman of the ABA Task Force on Enemy Combatants; Stephen Saltzburg, a member of the ABA Task Force on Enemy Combatants and chairman of its Kennedy Commission; Mark Agrast, former chairman of the Individual Rights & Responsibilities Section; Steven Walther, the former chairman and current Executive Board Member of the ABA Center for Human Rights and former chairman of the ABA Standing Committee on World Order; and Jon Streeter, president of the San Francisco Bar Association.

 

 

Attorneys General Forum
The ABA's annual meeting kicked off Thursday with a United States Attorneys General forum. Attorneys General representing the Carter, Reagan, and Clinton Administrations discussed their memories from their tenures at the Justice Department and offered their personal reflections on the role of the Office of Attorney General. The forum was moderated by former Clinton Solicitor General Seth Waxman.

When asked about their relationships with the presidents whom they served, Carter AG Griffin Bell remarked that "Carter didn't want any politics at the Department of Justice. He appointed Republicans." Bell enjoyed a civil, friendly relationship with the president. His successor, Ben Civiletti, remembered his tenure during the Iran Hostage crisis. He remarked how the White House wanted to take action several times during the crisis and he said no several times, joking "I became very popular because I kept saying no."

Reagan AG Edwin Meese commented, "Although I had long since been friends with the president, I wanted to keep our relationship professional. If needed, I wanted to be able to bring him bad news. There is also a need for confidence between the president and the attorney general."

Clinton's AG Janet Reno recounted, "There was no long-standing relationship with me and the President. I first met him in the oval office when they were discussing my nomination. I was so impressed with someone who knew government so well." She went on to say that President Clinton had a real understanding of civil rights. She always had access, though the President has the right to override her decisions. According to Reno, "The White House and the Department of Justice were linked in so many ways. There was a good line of communication between the two. The White House had a great network to help advance the issues."

Asked by Waxman whether the FBI is manageable by the AG, Reno replied "It is very difficult to manage the FBI. They try to wait you out. They were disappointed when I stayed (meaning another term)."

Waxman asked about the gatekeeping function-should the lawyers or the FBI make the decisions. Meese replied: "Splitting the two sides is not a good thing. Terrorists also commit crimes and since the intelligence people can't make arrests, we need the police to be able to work with them so that they can go in and make the arrests." General Meese discussed how the mindset of the two groups needs to change. When he was at the AG's office, everything was focused on the Cold War. That same mentality needs to be applied to the War on Terrorism.

When asked about whether the President took legal advice from the Attorney General, Meese replied, "The President was unhappy at times with OLC (Office of Legal Counsel) opinions, but he always went along with it."

To close out the panel, Waxman asked, "Upon reflection of your job at the AG's office, what was the most and least satisfying parts and what needs to be changed now?"

Janet Reno replied: "The number of exonerations has risen, which is great. We need more work to keep this going. We need science and law to continue to work together. Our system needs to be more reliable and we need more confidence in it. Lawyers need to be better fact finders."

Meese replied, "Between 1982-1992, the numbers of drug abuse dropped by 50%. We need to keep that going." He thought the Department of Justice needs to take the lead on making sure that people who leave prisons are well equipped to stay out of jail, saying "Too many people released back into society aren't there yet."

Civiletti remarked, "The worst part was the Iran hostage crisis. There was a sense of helplessness. The only thing I could do was to stop crazy ideas."

Griffin Bell answered: "Not much - greatest job I ever had. You had to tear people out of the jobs when a new administration came in…"


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