Thirty-nine years ago the United States Supreme Court recognized that medical professionals, let alone others, have a right not to assist in abortions in violation of their conscience.  What’s that?  Yes, I do have the date right.  I’m talking about Roe v. Wade and Doe v. Bolton.  While those cases held, wrongly, that women and their doctors have a fundamental constitutional right to kill an unborn child, they also recognized as important predicates to those decisions the right NOT to participate in abortion in violation of one’s conscience.  Friday’s announcement that the Obama Administration would force employers – including nonprofit religious employers – to pay for their employees’ contraception and abortifacients is just the latest example of how the abortion industry and its friends in the Obama Administration are attacking these well established rights of conscience in ways even the authors of Roe and Doe did not envision.

Even at the time of Roe, some were concerned that legalized abortion would lead to compelled participation in abortion, a concern that was not misplaced as ACLU attorneys were working in Montana to force Catholic hospitals to perform sterilizations.  The Supreme Court acknowledged but dismissed that concern, holding only that “the attending physician, in consultation with his patient, is free to determine, … the patient’s pregnancy should be terminated.”  The Court cited favorably the resolution of the AMA House of Delegates stating:

RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.

Similarly, in Doe v. Bolton while the Supreme Court struck down some parts of a Georgia abortion law, it left standing a provision that allowed any medical professional or hospital to decline to participate in abortions, saying that this provision was an “appropriate protection to the individual and to the denominational hospital.”  Thus, in the seminal abortion decisions that President Obama and the abortion industry celebrate this weekend, the same Court acknowledged the right NOT to assist in abortions in violation of conscience.

To be absolutely sure however, the U.S. Congress passed the Church Amendments, turning back ACLU efforts to treat Catholic hospitals receiving Medicare funds as public hospitals and force them to perform sterilizations (and ultimately abortions), and prohibiting recipients of certain federal funds from requiring medical professionals or any person to participate in abortions, sterilizations, or other procedures in violation of conscience.  This was so uncontroversial it passed with only a single vote against in either house – a vote total unthinkable even for a bill to honor mom and apple pie today.  In fact, noted right wing extremist Senator Ted Kennedy spoke in favor of the law on the floor of the Senate, saying that it protected the constitutional right not to participate in abortion and he supported the “full protection to the religious freedom of physicians and others.”  In 1973, as the opinions reflect, there was no doubt that whatever right the penumbral emanations of the constitution gave to women and doctors to participate in abortions, it certainly protected the right not to participate in abortions or other medical procedures that violated one’s conscience.

It is in the face of this history that the Obama Administration announced on Friday that it will, with only a 1 year reprieve, fine virtually every faith-based ministry in the country that does not pay for contraception and abortifacients (Plan B, Ella, IUD, etc. included).  This decision is certainly an affront to religious liberty –perhaps the greatest in our nation’s history.  But it is also completely unsupported, indeed rejected by the very cases that the Obama Administration would use to support its cause.  Roe and Doe, as bad as those decisions are, reject the Administration’s claim that a woman’s “right” to contraception and abortifacients justify the federal government compelling Christ-centered ministries to violate their conscience by buying these for them.  When you hear abortion industry supporters rely upon those decisions to justify this assault on conscience, don’t believe it.  Even Roe itself is conservative compared to the radical anti-life advocacy of the present Administration.

For all the pro-life student activists out there participating in today’s Pro-Life Day of Silent Solidarity with the unborn: Take heart.  You’re winning.

Why do I say this?  We are constantly reminded that Roe v. Wade is still “the law of the land.”  I know that Planned Parenthood still receives over three hundred and sixty million dollars of taxpayer funding annually – over 1/3 of its budget.  I know that Planned Parenthood and its allies are aborting babies at such a rate that over 1.2 million children in the U.S. alone will be denied life this year because of their work.  So how can I claim that you are winning the war when it seems that you’re charging up such a steep hill?

This.

Listen as the Planned Parenthood representatives struggle to wrap their arms around scientific ignorance.  This is all they have.  Faced with a growing scientific understanding of how life develops in the womb, all they can do is fall back on the postmodern game of elevating personal feeling over facts.

Here are a few choice quotes:

 “Science cannot be applied to my body.”  (I generally hope that my doctor is applying science to my body.)

“Science is not ultimate truth.  That’s why it’s science.”  (I agree that there is a real ultimate Truth, but I’m not sure that’s what she meant – especially because I don’t think it would help her argument.)

“The living breathing sentient being that has control over her body is the one we listen to, not science.” (So people who lack control over their bodies are not worthy of life?)

“Their (pro-lifers) researchers say that the heart beats in 21 days.  There’s people on our side and research that says that the heart doesn’t beat until 24 weeks.”  (The Mayo Clinic says “Just four weeks after conception … your baby’s heart is pumping blood.”  And I’ve listened to my own childrens’ heartbeats earlier than 24 weeks.)

“We need to focus on the birth control issue rather than the photos or scientific evidence that [the pro-life speaker] just gave you.”  (When I hear him say this I hear this).

“Anyone who is born with an x and a y chromosome is biologically female.” (Perhaps this came from the same doctor who says that the heart only begins to beat at 24 weeks?)

But it’s not just these Planned Parenthood representatives that have such a difficult time battling science.  Pro-abortion elected officials also must work very hard to ensure that they don’t let facts get in the way of their ideology.  Listen as Rep. Sheila Jackson-Lee describes an unborn child’s heartbeat as “sounds that might discourage this needed action” in the recent House debate on the Protect Life Act.

So, to sum up the pro-abortion mentality:  What is that thing in a woman’s body?  We know it was placed there because of the actions of two people and when it comes out it certainly seems to be a person.  But there just is no settled scientific answer as to what that thing is.  It’s a riddle wrapped inside an enigma really.  Science can never tell us what it is so we’ll just have to agree to disagree.

Of course, the temperature trends of the Earth over the past several millennia and the factors that cause their change is such settled scientific fact that merely to type this very sentence implicitly questioning this overwhelming scientific consensus might be an act of planetary treason.

When the pro-abortion lobby is reduced to pleading with us to ignore the facts and inventing fake science (24 weeks?!) to defend their ideological commitments to ending unborn lives (which happens to be very profitable) they’re on the ropes.

Take heart.  And don’t grow weary in doing good.

Here’s the last fifty years First Amendment rights on campus in a nutshell.  50 years ago the left advocated for the First Amendment rights of students (themselves) on campus.  They then gained positions of power in the universities and now run the show.  So that now when a conservative group stands up for the First Amendment rights of disfavored groups (now generally conservative groups like itself) on its campus, it is the left that dismisses the First Amendment and demands the status quo (the preservation of their own power). 

Young Americans for Freedom has a post up responding to the latest example of this at Stony Brook University.  Earlier this year the Student Government at Stony Brook University denied student activity funding to Young Americans for Freedom.  The funding, generally available to a broad spectrum of other student groups was denied YAF because student government made the subjective determination that it is “too similar” to College Republicans.  Of course, this similarity rule was not applied to prevent funding for an array of left wing groups.  Additionally, student government required groups seeking funding to submit a petition showing the signatures of approximately 800 students supporting funding for the group, including their phone number, address, and student ID numbers – a policy that favors popular groups and disfavors groups whose views are more controversial on campus (i.e. conservatism, evangelical Christianity, etc.).    

These policies clearly violate the First Amendment.  Directly applicable decisions of the United States Supreme Court (Southworth) and the Second Circuit Court of Appeals dealing with policies of Stony Brook’s sister-SUNY school (Amidon v. SUNY-Albany) eliminate any doubt about that.  Thus, in response to my letter, counsel for Stony Brook and its USG reviewed their policies, determined they were suspect, and quickly corrected them without any need for litigation.  Everyone should be happy with this result.  The First Amendment is vindicated, YAF gets the same status as other groups, and the parties were even able to work it out without the assistance of the federal judiciary. 

 “Think Progress,” a left wing magazine at Stony Brook, is not happy with this turn of events.  In an article titled: “Club Funding Drops $175,000 Thanks Largely to YAF’s Lawsuit Threat,” the supposedly “progressive” author blames YAF for any reduction in funding to student groups (while burying the lead – that student gov’t increased funding for itself by $250,000 and expects to make up lost club funding in the fall).  The author notes that the policy changes were required by the Supreme Court in Southworth,  quotes USG members explaining that fact, and then cites USG sources identifying that “viewpoint neutrality as the reason for the budget cuts.”  So, to sum up, the USG began complying with the First Amendment due to YAF’s efforts and this has reduced funding for some groups that received more under the previously unconstitutional system.  And the left attacks the group defending the First Amendment.

Unfortunately, this is unsurprising.  After all, student fee systems were created to increase funding for left wing causes and were serving that purpose well at Stony Brook.  And they would have gotten away with it too if it weren’t for those meddling YAF kids!

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What would American college universities be like without a First Amendment to protect disfavored (i.e. Christian, pro-life) speech?  If Carleton University in Ottawa prevails in its legal argument before a Queen’s Justice in Ottawa today, Canadian students may soon find themselves a case study in a university education where there is not even a pretense of a marketplace of ideas. 

Earlier this year, 2010 Pro-life activist of the year Ruth Lobo and a fellow pro-life student sued Carleton University officials after they were arrested (click for video) for holding a peaceful Genocide Awareness Project event on their campus.  Carleton University is by any objective measure the equivalent of a “public” university in the United States.  Yet, Carleton argues in Court pleadings (paragraph 14) that the school is not subject to the Canadian Charter of Rights and Freedoms’ protection of freedom of expression because it is not a “government” entity that must honor these student rights.  Under Carleton’s reading of the Charter, the protections for freedoms of expression, association, etc. are inapplicable to universities and students have no constitutional protection for their expression on campus at Carleton and other similarly “public” universities.  Today in Ottawa, ADF Allied Attorney Albertos Polizogopoulos will defend against Carleton’s motion to dismiss the case.  Prayers are solicited.  A decision will likely come in several weeks. 

While the complaint also raises several other ways in which Carleton’s actions violated the students’ rights, if accepted, Carleton’s assertion that it is unconstrained by any constitutional protections for its students’ expression makes this a critical case to watch.  Not only will the case determine the free speech rights of millions of Canadian students, but if Canada abandons altogether the notion of free speech on its university campuses, such a precedent might also be used to diminish First Amendment protections on U.S. campuses. 

With the rise in appeals to international law in interpreting the U.S. Constitution, it is worth remembering that one of the grievances listed by Thomas Jefferson in the Declaration of Independence was that King George had “abolish[ed] the free system of English laws in a neighboring province [Canada] … so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies.”   Unfortunately, some in the U.S. would have the motive to take advantage of bad decision by Canadian courts. 

Certain groups find the First Amendment a pesky obstacle to creation of a more “progressive” university and society and seek to effectively repeal its protections for dissenting voices on campus.  If Carleton prevails in claiming that students lack any constitutional speech protections, we can expect not only dire consequences for Canadian students but also efforts to import that decision into U.S. courts.

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As Amy Poehler (or at least her character) once said, “Freedom of Speech!  Look it Up!  It’s in the Thing!”  Perhaps officials at Pellissippi State Community College in Knoxville, Tennessee should move Baby Mama up in their Netflix queue so that they can hear that message.  The school – and the Board of Regents that oversee all Tennessee colleges and universities – are in flagrant denial of the basic applicability of the First Amendment to the campus.

As I explained previously, Pellissippi State requires students to pay for the right to speak anywhere on their own campus.  That’s right.  “FREE” speech will cost you $30 for every exercise at Pellissippi State.  But that’s not all.  If you decide you want to engage in free speech at Pellissippi State it isn’t as “easy” as stopping by the ATM while you formulate your ideas.  Per a Tennessee Board of Regents Policy (See Part V(2)) – evidently applicable to other Tennessee colleges – students must also apply for permission 14 business days (excluding weekends and holidays) in advance.  So if you’re looking for a positive, at least Pellissippi State students have plenty of time to save up to pay for the privilege of exercising their First Amendment rights on their own campus.

As you might expect, Pellissippi State can’t possibly apply such a preposterous policy evenly to all of its students.  If it did it would be overwhelmed with preemptive requests by students for permission to speak to one another, exchange class notes, etc. three weeks or more in advance.  Or alternatively the entirety of the campus would be eerily silent with students walking quietly from class to class across the main quad, the hush punctuated only by the words of the occasional well organized and funded student who had long ago paid to exercise his rights.

Of course, no college is like this — Pellissippi State included.  Its students, in flagrant violation of the school’s policy, congregate on the main quad, speak to one another and even exchange written information.  This is normal human interaction and it’s constitutionally protected.  But when Pellissippi State decides the policy should be applied to stop a speaker it has demonstrated that it will do so.  At least when that speaker is a Christian and his message the Gospel.

Last fall Mark Dew, a student at Pellissippi State, sought to publicly testify to his Christian faith and distribute free literature to his fellow students.  He did this on the main quad without amplification, without impeding student traffic, and in a positive and conversational manner.  Campus police shut him down, claiming that his speech is “solicitation” even though he seeks to exchange only ideas not money.

Mr. Dew tried pleading his case to school officials who were sympathetic but unbending in their view that he would need to pay for the privilege of speaking on the campus.  ADF Allied Attorney Andrew Fox then sent a letter to the school explaining that Mr. Dew is not engaged in “solicitation” but First Amendment protected speech.  Not only did Pellissippi State stick with its story but an attorney for the Tennessee Board of Regents defended the pay-to-speak policy as “reasonable and viewpoint neutral.”

I’m aware of no case that has ever permitted a university to restrict student expression in the manner that Pellissippi State does.  There are no constitutionally permissible waiting periods on a single student’s speech on his own campus – let alone a three week waiting period that will ensure one’s message is stale by the time it is heard.  And free speech doesn’t come with a price tag.  If the University is supposed to be the marketplace of ideas, the central planners at Pellissippi State have regulated the marketplace out of existence.

Fox and ADF filed a complaint yesterday in the United States District Court for the Eastern District of Tennessee against Pellissippi State officials and the members of the Tennessee Board of Regents seeking to have these policies declared unconstitutional.   Please let us know if this TN Board of Regents Policy or anything like it have been enforced on your campus.